Final Order 12

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. RAJINDER SINGH
ASJ-06, NDD, PATIALA HOUSE COURTS, NEW DELHI
CR. No. – 78/2022
In the matter of:
1. Shashank Banerjee
S/o Sh. L.K. Banerjee
R/o 4255, Creek Haven,
Dr. Marieta, GA-30062
United States of America
Through S.P.A. Holder
Sh. Raj Kamal Bhatia
S/o Sh. Sahib Chand Bhatia
R/o B1-27, Upper Ground Floor,
Malviya Nagar, Delhi-110017 ….Revisionist
Versus
1. M/s Spaze Tower Pvt. Ltd.
A Company Registered under the Registrar of Companies Act, 1956
Having it's Registered Office at:
UG-39, Upper Ground Floor, Somdatt Chamber-II,
9, Bhikaji Cama Place, New Delhi 110066
Also At: SPAZEDGE
Sector-47, Gurgaon-Sohna Road,
Guargaon, Haryana-122002
2. Sh. Deepak Kumar
Director of M/s Spaze Tower Pvt. Ltd.
3. Sh. Bharat Bhushan Kumar
Director of M/s Spaze Tower Pvt. Ltd.
Both Residents of: K-91, IInd Floor,
Lajpat Nagar-II, Delhi-110024.
4. Sh. Aman Sharma
Director of M/s Spaze Tower Pvt. Ltd.
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5. Sh. Vipin Sharma
Director of M/s Spaze Tower Pvt. Ltd.
Both Residents of: Farm No. 16, Khasra No. 387,
Rajokari, Delhi-110038.
6. Sh. Jaspal Singh Chawla
Director of M/s Spaze Tower Pvt. Ltd.
7. Sh. Harpal Singh Chawla
Director of M/s Spaze Tower Pvt. Ltd.
Both Residents of: C-4, Rajouri Garden,
New Delhi – 110027. ….Respondents
Date of Filing : 09.03.2022
Reserved for Order : 08.07.2023
Date of Order : 01.08.2023
1. The present revision petition has been preferred against order dated
25.01.2022 of Ld. ACMM02, NDD, PHC, New Delhi. Vide this impugned
order, Ld. Trial Court dismissed the application of the revisionist under Section
156(3) CrPC.
2. Brief facts.
Ld. Trial Court summarised the brief facts as follows:
2.1 “This order shall dispose off the application u/s. 156 (3) Cr.PC filed on
behalf of complainant. In nutshell, case of complainant is that in the year 2012,
alleged had widely advertised their commercial project namely Spaze Towers
Pvt. Ltd. located at Sector 28,Gurugram, Haryana. This was so advertised even
before taking licence for construction. Many other superficial claims to attract
investment were made. Complainant had several meetings with officials of
Spaze Towers Pvt. Ltd. at their office by which officials including its directors /
promotors made dishonest representations and assured that they had all the
necessary permissions. Believing representations so made, complainant agreed
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to buy a commercial space and an application form dated 04.06.2012 was filed
by him. On 19.01.2013, an allotment letter was issued for shop at ground floor
in the said project. On 22.01.2014, buyers' agreement was signed between
complainant and allottee, which specified that shop would be delivered within
42 months from the date of agreement. Subsequently, complainant paid about
Rs.65,75,000/ towards purchase of said shop. Possession of shop was to be
delivered in 2017, but after visiting project site, complainant learnt that
construction was not complete. Many requests were made to alleged directors to
complete the project, but they did not pay any heed. Recently, when complainant
visited project site, he found that site lace has been abandoned and nothing has
been done there. Again, complainant met officials of Spaze Towers Pvt. Ltd. and
requested them to return his money along with interest. Said request of
complainant was rejected and on their own they declared that shop of the
complainant has been shifted to another project of their choice. On refusal by
complainant to accept such change, he was threatened and told that he will not
get either money or any shop. That alleged have siphoned off the money paid by
complainant towards purchase of property. Complaint was made to police
through attorney of complainant, but no action was taken by police. Alleged
company through its directors neither had sought permission nor approval from
authorities concerned to pursue its project. That alleged have cheated money
not only from complainant but from common public at large and FIR should be
registered against them. As police did not take any action on complaint filed by
complainant, thus, present application has been filed.
Action taken report was called in the present matter. It has been reported
that in respect of project in question, FIR No. 94/2021 has already been
registered against accused with similar kind of allegations and by
administrative directions given by ACP concerned, vide diary no. 5281,dated
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03.08.2021,all the complaints received in respect of Spaze Towers Pvt. Ltd. are
clubbed with the said FIR.” (SIC).
3. Arguments.
3.1 It was submitted on behalf of the revisionist that in FIR No. 94/2021
PS R.K. Puram, the sections invoked are 420/406/34 IPC. In the present
complaint, sections 468/409 IPC are also mentioned. The invoice dated
04.06.2012 (Page No. 55 of the TCR) is the forged document. Specific court
query was put to the Ld. Counsel for the petitioner as to how this invoice dated
04.06.2012 is a forged document. It was submitted that in the BuilderBuyer
Agreement dated 22.01.2014 on the 3rd page, last para (Page No. 27 of the
TCR), it is mentioned that approval for license was taken on 06.06.2012,
whereas the invoice was issued on 04.06.2012 prior to the approval. The
application for sanction was filed on 12.06.2012, i.e. after having taken money
from the revisionist. It was further submitted that money was accepted from the
revisionist without prior approvals, whereas he was told that approvals have
already been taken. As such, these were false representations.
3.2 It was submitted on behalf of the respondents that on Page No. 6 of the
present revision petition, the entire complaint is reproduced. There are no
allegations of forgery. All the allegations are about nondelivery of the said
shop. It was further submitted that due to dispute and litigation with the land
owner and the developer, there was a delay in the completion of the project. FIR
No. 94/2021 PS R.K. Puram has already been registered against the respondents.
The allegations / complaints of other home buyers are being investigated therein.
Most of the home buyers had no grievance. Though, the first complaint has been
settled, but since there are multiple victims / complainants, the FIR is still being
investigated with regard to the grievance of other complainants. The
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superstructure of the building is already complete. RERA Haryana got the audit
done. There are no allegations of diversion of funds. The ACP concerned gave
administrative directions for clubbing of the complaints.
3.3 In rebuttal, it was submitted that the order of ACP concerned came
when the revisionist filed the complainant. Since the accused got bail in FIR No.
94/2021 PS R.K. Puram, the revisionist wants fresh FIR registered upon his
complaint.
4. Reasons for Order.
4.1 I have perused the impugned order. In Para No. 2 of the order, it is
mentioned that vide administrative direction, given by the ACP concerned, vide
Diary No. 5281 dated 03.08.2021, all the complaints received with regard to
respondent no. 1 were clubbed. In the impugned oder, it was held that in case of
The State (NCT) of Delhi Vs. Khimji Bhai Jadeja in SLP (Crl.) Nos.
9198/2019 (Arising out of impugned final judgment and order dated
08072019 in CRLR No. 1/2014 passed by the Hon'ble High Court of Delhi
At New Delhi) has been stayed by the Hon'ble Supreme Court of India. In The
State (NCT) of Delhi Vs. Khimji Bhai Jadeja (supra), decision was given to
register multiple FIRs.
4.2 In the present case, it is the argument of the petitioner that in FIR No.
94/2021 PS R.K. Puram, the sections invoked are 420/406/34 IPC, whereas in
the present complaint, sections 468/409 IPC are also invoked. In my considered
opinion, the investigating agency as well as the court are not bound by the
sections / legal provisions mentioned in the complaint. The investigating agency
will investigate all the allegations. The court while taking cognizance on the
final report (if any) will also scrutinise which offences are made out on the basis
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of the investigation conducted. As such, merely invoking different sections as
compared to the previous FIR will not lead to the conclusion that the allegations
in the present complaint are different as compared to FIR No. 94/2021 PS R.K.
Puram. In fact, FIR No. 94/2021 PS R.K. Puram was registered on the complaint
of a home buyer. The present petitioner is also a home buyer. The allegations are
against the same respondents. As such, there is no need for any different FIR.
The different allegations levelled by the petitioner can be investigated in FIR
No. 94/2021 PS R.K. Puram, particularly when there is an administrative order
to investigate all similar complaints in the same FIR.
5. Ld. Counsel for the petitioner submitted that Section 468 IPC is made out
with regard to the forgery of invoice dated 04.06.2012. As already observed
above, even these allegations can be investigated in FIR No. 94/2021 PS R.K.
Puram. There is no substantial difference in the complaint of the present
revisionist, visavis, the allegations of other home buyers.
6. In view of the above, this court does not find any legal infirmity in the
impugned order. Accordingly, the present revision petition is dismissed.
7. TCR along with copy of this order be sent to the Ld. Trial Court
concerned.
8. Revision file be consigned to record room after due compliance.
PRONOUNCED IN THE OPEN (RAJINDER SINGH)
COURT ON 01.08.2023 ASJ-06/NDD/PHC/NEW DELH
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