AJIT GUPTA Vs. STATE OF DELHI

JUDGEMENT

(1.) This revision petition is directed against the order dated 18.11.1997 passed by the learned Additional Sessions Judge allowing the revision petition filed by the complainant (Yashpal Singh) in respect of an order dated 19.02.1997 whereby the petitioner had been discharged by the learned Metropolitan Magistrate.

(2.) A complaint was filed by the respondent No.2 (Yashpal Singh) alleging that offences under Sections 403/405/420 IPC had been committed by the petitioner [Dr Ajit Gupta] (referred to as accused No.1 in the complaint) and one Mr Chaman Lal (referred to as the accused No.2 in the complaint). It was alleged that on 29.07.1983 the petitioner dishonestly and fraudulently misrepresented that he was competent to sell the bus bearing Registration No. DEP 4301. It is alleged that the respondent No.2, the complainant, agreed to purchase the said bus for a sum of Rs.2,55,000/- less the bank loan to the tune of Rs.1,65,000/-. The complainant was, therefore, required to pay a sum of Rs.90,000/- only and the petitioner was to hand over all the papers of the said bus and transfer the complete rights of the bus. It is further alleged that thereafter the petitioner represented that the complainant could pay Rs.55,000/- and the remaining Rs.35,000/- would be collected by him through cheques from the Delhi Transport Corporation (DTC) as the bus was running under the DTC operation. It was further alleged that the complainant was to bear the diesel, maintenance, salary of driver and cleaner and other maintenance and operational charges. On this representation, it is alleged that the complainant paid Rs.5,000/-. On 03.09.1983, the petitioner is alleged to have received a sum of Rs.50,000/- against receipt. In this way, it is alleged that the complainant paid the agreed amount of Rs.55,000/-. It is alleged that in the second / third week of November, 1983, the complainant came to know that a sum of Rs.10,000/- was to be deposited in Bank as installment of the loan. The petitioner had promised to deposit the said installment of loan alongwith road tax arrears and the insurance premium. The complainant allegedly incurred all the maintenance and operational charges. It is alleged that the petitioner received Rs.51,754.72 from DTC. Apparently, on 12.01.1984, the bus met with an accident and the complainant asked the petitioner to inform the insurance company on which the petitioner reportedly disclosed that the bus was not insured. Thereafter, the complainant was asked to compromise the matter. The complainant spent a certain amount of money on repairs and came to know that the road tax was also not deposited since 04.04.1983. It is alleged that on 29.02.1984, the complainant was surprised to learn from the office of the DTC that the accused (Chaman Lal) stopped the delivery of cheques. On being contacted, both the accused persons, i.e., Dr Ajit Gupta and Mr Chaman Lal agreed that the road tax and insurance premium as well as the bank installments would be paid by Mr Chaman Lal and thereafter, necessary transfer papers would be executed. In this manner, the accused persons dishonestly induced the complainant to continue to operate the bus and the complainant incurred maintenance and operational charges. The complainant allegedly took a loan of Rs.80,000/- for incurring the said maintenance and operational charges. It is alleged that Mr Chaman Lal collected cheques for Rs.18,292.60 and fraudulently encashed the same by depositing them in some other account. In May, 1984, it is alleged that Mr Chaman Lal and the complainant opened a joint account in New Bank of India in its branch at Subzi Mandi, Ghantaghar, Delhi. It is alleged that the complainant used to deposit cheques collected by him from DTC in the said account. Apparently, on 19.09.1984, the bus was seized by the Traffic Police on account of non-production of the Registration Certificate and fitness certificate and on 04.10.1984, the DTC directed the suspension of operation of the said bus. On 10.12.1984, the bus is said to have met with an accident and for which a case under Section 279/304-A IPC was registered at Police Station Kalkaji. It is alleged that Mr Chaman Lal took the bus on superdari and removed the same for repairs. Thereafter, the accused persons did not return the bus to the complainant and, therefore, the complaint was made for offences under Sections 420/406 IPC.

(3.) It is noted in the order of the Metropolitan Magistrate dated 19.02.1997 that after recording of the preliminary evidence, the petitioner (Dr Ajit Gupta) was summoned by an order dated 28.01.1987, whereas the complaint against Mr Chaman Lal was dismissed. In the same order dated 19.02.1997, it is noted that pre-charge evidence was recorded and the complainant examined four witnesses, including himself. It appears that PW-1 [Ratan Singh] was a witness of the Agreement to Sell and the payment of Rs.5,000/-. PW-2 [S.P. Gupta] deposed with regard to the opening of the joint account of the complainant [Mr Chaman Lal]. PW-3 [Ram Nath] was from the DTC and he deposed about payments made by DTC to the authorised person. PW-4 (Yash Pal) was the complainant himself and he reiterated the allegations made in the complaint. The learned Metropolitan Magistrate noted that the offence of cheating is sought to be made out from the allegations that the petitioner (Dr Ajit Gupta) dishonestly misrepresented that he was competent to sell the bus. But the learned Metropolitan Magistrate was of the view that this has not been established because the co-accused [Chaman Lal] never disputed the authority of Dr Ajit Gupta to dispose of the bus. With regard to non-payment of road tax and not getting the bus insured, the learned Metropolitan Magistrate was of the view that these facts ought to have been verified by the complainant before he entered into the deal. The learned Metropolitan Magistrate also observed that the complainant only paid Rs.55,000/- and he was to pay an additional amount of Rs.1,65,000/- towards the bank loan and adjust a sum of Rs.35,000/- out of the cheques to be collected by the accused from DTC. The operational changes were to be incurred by him. The learned Metropolitan Magistrate came to the conclusion that the sum total of the amounts payable by the petitioner did not come to more than the amount to be paid by the complainant and that, therefore, the complainant was not a loser. The learned Metropolitan Magistrate concluded that simply because the agreement to sell the bus did not materialise, it did not amount to the making out of an offence. He further observed that the complainant could have availed his remedy by filing a civil suit for specific performance of the agreement. Accordingly, he did not find any prima facie case against the petitioner also and discharged him.