Final Order 6

Order Details: COPY OF ORDER
Pdf Text: Cr Rev No. 312/2023
Rohtash Bhiduri Vs. State of NCT of Delhi
FIR No. 32/2019
21.03.2024
Present:- Sh. Sonam Sharma, Sh. Rajiv Mohan, Sh.
Rishabh Bhatt, Sh. Ridhi Jain and Sh. Rehan
Verma, Ld. Counsel for the Revisionist.
Sh. Sobit, Ld. Additional PP for the State/R1.
Complainant Surender Singh Rana, Uma
Shankar, Aditya on behalf of Sunita Devi, Umesh
Chaudhary, Mannu Rekwar, Surender Prasad
Sinha and Guddi Devi are present in person.
ORDER
1. It is argued by Ld. Counsel for the Revisionist that
the present revision petition has been filed against the
summoning order of Ld. CMM dated 28.07.2023 and the said
order has been assailed on the ground that there are no specific
allegations made out against Revisionist Rohtash Bidhuri @ Titu
in the FIR, charge-sheet dated 24.02.2020 and supplementary
charge-sheet dated 24.03.2023 and he has been put in column no.
12 of the supplementary charge-sheet dated 24.03.2024 and the
Ld. CMM has summoned the Revisionist without recording any
reason or there being any justifiable grounds or base on which
the said summoning order was passed against the Revisionist and
that it was passed on non application of judicial mind and is not
sustainable in the eyes of law.
2. It is further submitted that the Revisionist is an
innocent and lawful owner of plot of 1 acre or 8 Canal 5 Marla at
Tilori, Greater Faridabad, Haryana and accused persons had
approached him through a broker Sudhir Kumar Bidhuri of same
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village and persuaded him to sell the plot to them and GPA and
agreement to sell dated 27.08.2014 was executed by Revisionist
and he sold the plot for a consideration of 1,40,00,000/- in favour
of Bunty Chauhan, who was employee of GRPL Globe Reality
Pvt. Ltd., and was nominated by the accused persons for
executing the documents in his favour and in 2017 Revisionist
was informed by Sudhir Kumar Bidhuri that Bunty Chauhan had
absconded and to prevent misuse of plot, Revisionist was asked
to cancel the said GPA and agreement to sell and accordingly,
petitioner got the same cancelled.
3. It is further submitted that Revisionist acted without
malice good conscience and bona-fidely and he had no intention
to cheat or deceive anyone and he was summoned by EOW and
he joined the investigation and got recorded his statement with
the IO and sent a letter to said company on 05.02.2022 and
expressed his wish to execute the sale deed with respect to the
said plot in the name of any Director or authorized personnel of
the accused company and he got published two public notices in
different newspapers on 09.02.2022 to declare that any rightful
claim from said company pertaining to said plot would be
entertained and he was ready to sign the sale documents to the
rightful claimant and he also approached the court of Ld. MM
vide application dated 04.05.2022, but the same was dismissed.
4. The Revisionist was summoned along with other
accused persons after filing of supplementary charge-sheet and
despite being put in column no. 12, the culpability of accused
was not mentioned in the order of Ld. CMM and the Revisionist
was mechanically summoned. Ld. Counsel has relied upon
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Jagdish Ram v. State of Rajasthan and Another reported as
(2004) 4 SCC 432, Rupam Deol Bajaj (Mrs) and Another v.
Kanwar Pal Singh Gill and Another reported as (1995) 6 SCC
194, M/s. Pepsi Food Ltd., and Another v. Special Judicial
Magistrate and others (MANU/SC/1090/1998), Radesh Singh
and Ors. v. State and Anr. Reported as 2011 SCC Online Del
901 and Sunil Bharti Mittal v. Central Bureau of Investigation
reported as (2015) 4 SCC 609 and argued that the said order is
not sustainable in the light of these judgments.
5. Ld. Counsel for the complainants as well as
complainants and Ld. APP submit that the order of Ld. CMM is
just, proper and judicious one, which does not need any
interference as Hon’ble Trial Court had considered all the
materials placed before it and considering the same, the
summoning order was passed qua Revisionist Rohtash Bidhuri
and it was the discretion of the court to summon the person as an
accused, who has not been charge-sheeted or put in column no.
12. Ld. Counsel for the complainant submits that the accused has
played an active role in the commission of crime and in
pursuance of criminal conspiracy with the accused company as
well as other accused persons, he had duped the investors, who
belong to middle class/lower middle class and arranged money
for the house with difficulty and accused have not even started
the construction nor any house was provided to them despite
taking the money and the Revisionist has taken a sum of Rs. 1.4
Cr. from the said company, which shows his complicity in the
crime and the land involved in the present case belongs to
Revisionist Ramesh Bidhuri and EOW in connivance with
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accused Rohtash Bidhuri & others have wrongly given clean chit
to them and put in column no. 12.
6. I have heard the rival contentions and perused the
record.
7. Section 397. Calling for records to exercise
powers of revision-(1) The High Court or any Sessions Judge may call
for and examine the record of any proceeding before any inferior Criminal
Court situate within its or his local jurisdiction for the purpose of satisfying
itself or himself as to the correctness, legality or propriety of any finding,
sentence or order, recorded or passed, and as to the regularity of any
proceedings of such inferior Court, and may, when calling for such record,
direct that the execution of any sentence or order be suspended, and if the
accused is in confinement, that he be released on bail or on his own bond
pending the examination of the record.
8. The present FIR was registered on 14.02.2019
against the company GRPL Globe Reality Pvt. Ltd., its Director
Vishal Sharma, Anil Sharma and Vaibhav Jugran u/s
406/409/420/468/471/506/120B IPC with the allegations that
complainant had booked a plot and was allotted plot on
agreement for proposed residence in a housing scheme/colony
launched by the accused persons, who are Directors of GRPL
Globe Reality Pvt. Ltd., at Tilori, Greater Faridabad, Haryana,
which comprises of 496 plots with land area of 10.026 acres and
builder buyer agreement was executed on 20.06.2013 between
complainant Arjun Singh and said company, which is having
registered office at Shahdara, Delhi-32 (Developer). As per the
agreement, the price of plot was fixed for a sum of Rs. 3,15,000/-
and booking amount was Rs. 78,750/- and payment was made by
the complainant and receipt was issued by the said company, but
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the possession of the plot was not delivered and they refused to
do so and utilized the amount taken from different buyers for
their own personal gains, but could not get any plot or flat and
the said land on which the housing scheme had to be developed
is incomplete as no work had started and the police had not
registered the case and the amount was dishonestly
misappropriated by the said company and its Directors, which
was the hard earned money of the persons from economic weaker
sections.
9. After the investigation, the charge-sheet was filed
against accused Vishal Sharma u/s 406/409/420/506/120B IPC
for cheating and misappropriating the money of poor people and
threatening them. Supplementary charge-sheet was filed against
Varsha Sharma, Rajender Sarin, Sudhir Kumar on 24.03.2023
and vide order dated 28.07.2023, the accused Varsha Sharma and
Rajender Sarin, Directors of GRPL Globe Reality Pvt. Ltd., were
summoned and also Vaibhav Jugran, Director of said company
and Rohtash Bidhuri @ Titu, put in column no. 12, who was
landlord of land measuring half of 25 Canal, 5 Marla have been
summoned as an accused in the present case.
10. The charges against the accused company and other
accused persons are grave in nature, but in the supplementary
charge-sheet filed by the EOW, it is mentioned that Revisionist
Rohtash Kumar Bidhuri had accepted a sum of Rs. 1.40 Cr in the
form of cash and banking channels through mediator Sudhir
Kumar and in lieu of which on verbal direction of Sudhir Kumar,
got executed the GPA and Will of 8 Canal, 5 Marla in the name
of Bunty Chauhan (employee of GRPL Ltd.) and in 2017, Sudhir
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Kumar Bidhuri met him once again and asked him to cancel the
GPA and Will in the name of Bunty Chauhan as he had eloped
and not approachable. It is also mentioned in the charge-sheet
that it is inferred that landlord Rohtash Kumar (Rohtash Bidhuri)
did not have any ill intention and he was not in contact with any
of the victims/complainants and in the concluding paras it is
specifically mentioned that no sufficient evidence against the
landlord Rohtash Kumar has come on record, hence his name is
kept in column no. 12.
11. In Sanjeet Bakshi vs. State of NCT of Delhi and
another in Crl. M.C. 4177/2019, dated 19.05.2022, Hon’ble
Delhi High Court held that cognizance implies application of judicial
mind by a Magistrate to the facts as stated in the complaint or a police report
or upon information received from any person that an offence has been
committed as provided in Section 191 Cr.P.C. The court before taking
cognizance needs to be satisfied about existence of prima facie case on the
basis of material collected after conclusive investigation and it is not
necessary to pass a detailed order giving details reasons while taking
cognizance.
In the said case Hon’ble High Court set aside the
summoning order in which no reason was assigned and held that
“11. The impugned order dated 18.09.2018 is cryptic, non speaking
and is passed without application of mind and in casual and cursory
manner and even the offencces regarding which cognizance was taken are
not mentioned accordingly, the impugned order is set aside. The Trial Court
is directed to reconsider the issue of taking the cognizance afresh and to
pass the speaking order on the basis of charge-sheet”.
Same view was upheld by Hon’ble Delhi High
Court in Vikas Thakur V. State of NCT of Delhi Crl.
M.C.6619/2023 dated 14.09.2023.
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12. In Radesh Singh (Supra), it was held by Hon’ble
Supreme Corurt that when no evidence was found by the police and the
Magistrate considered that there was sufficient evidence, then Magistrate
must pass a speaking order for summoning such offenders, against whom in
the opinion of the police there was no evidence.
13. In Sunil Bharti Mittal (Supra) it was held that the
Magistrate is empowered to issue the process against the person, who has
not been charge sheeted and the basis for formation of opinion to summon
the person as accused has to be stated in the order itself by giving the
reasons though the order need not contain the detailed reasons.
14. It is apparent from the supplementary charge-sheet
and main charge-sheet filed so far that the Revisionist Rohtash
Bidhuri @ Rohtash Kumar was put in column no. 12 as no
prosecutable evidence was found against him by the EOW and he
was summoned without passing any speaking order and Ld.
CMM must have passed speaking order as to on what grounds
and for what offence accused is summoned especially when
EOW had put accused in column no. 12.
15. In the light of above discussion and the judgments
discussed above, the impugned order dated 28.07.2023 is set
aside and the Ld. Trial Court is directed to reconsider the issue of
summoning the Revisionist Rohtash Bidhuri as an accused and to
pass an speaking order on the basis of charge-sheet.
Copy of this order be sent to the concerned Trial
Court for information and compliance.
The Criminal Revision Petition along with
pending application, if any, stands disposed of.
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TCR be sent back to Ld. Trial Court.
File be consigned to Record Room after
necessary compliance.
(Kumar Rajat)
ASJ-07/SHD/KKD Courts/Delhi
21.03.2024
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