NARESH KUMAR BABBAR Vs. STATE

JUDGEMENT

(1.) This revision under section 397 / 401 Cr.P.C. is directed against order dated 27.11.2009 passed by Chief Judicial Magistrate, Gautam Budh Nagar in criminal case no. 16013 of 2009, State v. Ramesh Chandra and others arising out of case crime no.701 of 2009, P.S. Sector 39, Noida, District Gautam Budh Nagar whereby, on the basis of charge sheet submitted by the police, cognizance was taken by the Magistrate and the revisionists were summoned to face trial under sections 406, 420, 467, 468, 471, 323, 504, 506 IPC.

(2.) In brief, the facts of the case are that on 8.10.2009, opposite party no.3 Vinay Khaitan moved an application under section 156 (3) Cr.P.C. in the Court of Chief Judicial Magistrate, Gautam Budh Nagar against the revisionists Ramesh Chandra, Sanjai Chandra, Naresh Kumar Babbar and one Anupam Singh (non-applicant) for having committed offences punishable under sections 323, 406, 420, 467, 468, 471, 504, 506 IPC. On orders of the Magistrate, F.I.R. was lodged at P.S. Sector 39, District Gautam Budh Nagar. F.I.R. was registered on 14.10.2009 at 9:30 p.m. It was alleged in the F.I.R. that the complainant Vinay Khaitan is the Director of M/s. Vrindavan Info Solution Pvt. Ltd. whereas, the accused persons namely Ramesh Chandra, Sanjai Chandra, Naresh Kumar Babbar and Anupam Singh were the Chairman, Managing Director, Accounts Manager and Sales Manager respectively of M/s. Unitech Hi-tech Developers Ltd. It was alleged that on 15.7.2007, Ramesh Chandra, Sanjai Chandra and Naresh Kumar Babbar came to complainant and represented that they were constructing few VIP and VVIP (Super Luxury) Apartments on Express Highway in Sector 96, 97 and 98, Noida by the name of 'Unitech Grande'. They offered such an Apartment to the complainant, who told them to come on 17.7.2007 for registration. On 17.7.2007, all the four accused named in the F.I.R. came to the house of the complainant and talked about Apartment No.2101, Floor 21, Tower No.5 of Block No.3 of 'Unitech Grande' measuring 5309 square feet. The price was disclosed to be Rs. 4,33,29,753/-. It was promised that the Apartment and the Society would have Super Luxury facilities. Believing the promises made by the accused persons, the complainant paid a sum of Rs. 41,33,204/- to the accused persons in presence of one A.K. Singhal through four cheques and receipts were issued by the accused persons. Allotment order was issued in favour of the complainant and balance 80% amount was also demanded by the accused persons and it was promised that possession shall be handed over and sale deed would be executed shortly. A further sum of Rs. 3,72,41,627/- was demanded by the accused persons. When the complainant expressed his inability to pay such a large amount at a short notice, the accused persons promised to get him a loan from H.D.F.C. Bank on execution of few documents. They also got documents of loan executed by the complainant and further disclosed that clearance has already been obtained from Noida Authority. H.D.F.C. Bank sanctioned a loan of Rs. 3,72,41,627/- in favour of the complainant and the amount was paid to the accused persons, in respect of which, a receipt was issued by the accused persons on 1.9.2007. The complainant further paid a sum of Rs. 50,000/- by cheque to the accused persons on 26.10.2007 as membership fee. When the complainant asked the accused persons to deliver possession and to execute sale deed of the Apartment, the accused persons started lingering on and did not give a clear reply. When the complainant went to the office of the accused persons, it was found that they had changed their address. The notice dated 28.3.2008 sent by the complainant was not even replied. The complainant inquired from the Noida Authority about the Apartment and it was revealed that no sanction has been granted by Noida Authority. Then the complainant became aware of the fact that fraud has been committed with him. The complainant went to the office of the accused persons frequently and with great difficulty, managed to meet the accused on 29.9.2009. The complainant demanded either to deliver possession of the Super Luxury Apartment and to execute sale deed or to refund his money. On this, the accused persons abused the complainant, assaulted him and threatened him with death and said that his money would not be returned. The police did not lodge F.I.R. and, therefore, application under section 156 (3) Cr.P.C. was moved.

(3.) The F.I.R. was challenged by the revisionists before this Court by means of criminal misc. writ petition no.21771 of 2009, Naresh Kumar Babbar & others v. State of U.P. & others wherein by order dated 24.10.2009 arrest of the petitioners - revisionists was stayed. The police investigated the case and after investigation, charge sheet was filed by the police against revisionists Ramesh Chandra, Sanjai Chandra and Naresh Kumar Babbar. On receipt of the charge sheet, the learned Magistrate, by impugned order, took cognizance, registered the case and issued summons to the accused fixing 23.12.2009. Hence, this revision.