Punjab-Haryana High Court
Mala A. Malhotra vs Piyush Gupta on 20 January, 2025
Neutral Citation No:=2025:PHHC:008040
CRM-M-18905-2016 (O&M) 1
205IN THE HIGH COURT OF PUNJAB AND HARYANA
CHANDIGARH
CRM-M-18905-2016 (O&M)
Date of Decision: 20.01.2025
MALA A. MALHOTRA
...Petitioner
V/S
PIYUSH GUPTA ...Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Anurag Arora, Advocate and
Ms. Radhika Mehta, Advocate for the petitioner.
Mr. Vikas Sharma, Advocate for
Mr. Pawan Kumar Garg, Advocate for the respondent.
****
HARPREET SINGH BRAR J. (Oral)
1. Present petition has been filed under Section 482 of Cr.P.C.
seeking quashing of criminal complaint No. 544/14.12.2011/16.05.2016
titled as Piyush Gupta Vs. Tarun Kumar and Others (Annexure P-1) and
summoning order dated 29.05.2012 (Annexure P-11) and orders dated
03.05.2016 (Annexure P-12) whereby learned Magistate has issued non-
bailable warrants against the petitioner and also all subsequent proceedings
arising therefrom.
2. The complainant has alleged that he had purchased one plot of
the project D.D. City, a project of D.D. Township Ltd. at Sector 77,
Faridabad, having an area of 200 Sq. Yard @ Rs. 7350/- Sq. Yards, from
accused in the year 2010 vide booking receipt no. F-038, dated 13.05.2005
in lieu of depositing amount of Rs. 3 Lakhs. He purchased the plot from the
authorized broker of the company. It was already booked in the name of the
accused no. 6-Mala Malhotra (petitioner herein). The consolidated amount
of three cheques is Rs. 9 lakh. After this the accused issued certain
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documents to the complainant and informed him that the plot is at Sector
77, Nehar Par. After receiving these documents, when the complainant
went to the company’s-office to get the plot transferred in his name, the
accused persons demanded Rs. 5 Lakh as transfer fees. They also
demanded Rs. 4 lakh as the second installment and assured him that after
this the plot will be allotted to the complainant. On this complainant issued
another cheques, in the name of accused company and the accused issued a
receipt of the above cheques which bears the signature of persons
authorized by the accused. At the time of issuance of receipts, accused
persons have assured the complainant that plot will be allotted to him
within 15 days and possession within 1 year. They also informed him that
very soon they are going to obtain the license. Complainant alleged that the
accused persons neither allotted him plot nor the possession was given.
Doubting the bona fides of accused person’s, complainant visited the site at
Sector 77 Faridabad, and he found that there was no progress regarding the
project. He went to the office of the accused and asked for the status and
license to develop the colony, but no information was provided to him.
Thereafter, the complainant sent a legal notice through his legal counsel
which also remained unanswered. On making an enquiry at Government
Office, the complainant came to know that accused persons had already
obtained the requisite license. It appeared that due to mala fide intention
they have not started work on the site. It had also came to the complainant’s
notice that the said land, to which project is concerned, has been sold out to
some other company. On the basis of afore said allegations,
complaint(supra) was registered.
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3. Learned counsel for the petitioner inter alia contends that no
allegation of cheating or forgery etc. can be fastened upon the petitioner
and there are only general and vague allegations against the petitioner in
the complaint filed by the complainant. Learned counsel further submits
that petitioner has nothing to do directly or indirectly with the accused-
company. Learned counsel further submits that there is no evidence
available on record to connect the present petition with the accused
company and to suggest that she had joined hands with the other accused in
the alleged commission of offences of cheating and forgery and learned
Court below has erred in summoning the petitioner to face the trial.
4. Per contra, learned counsel for the respondent submits that
looking at the allegations made in the complaint, learned Court below
prima facie has rightly summoned the petitioner along with other accused
persons for the offences under Sections 406, 420, 467, 468, 471, 34 and
120-B of Indian Penal Code and there is sufficient material available to
connect the present petition with the alleged occurrence.
5. Having heard learned counsel for the parties and after perusing
the record of the case, it transpires that the summoning order dated
29.05.2012 (Annexure P-12) was passed without following the drill of
Section 202 of the Cr.P.C.
6. The Hon’ble Supreme Court in Abhijit Pawar vs. Hemant
Madhukar, 2017(3) SCC 528, National Bank of Oman vs. Barakara
Abdul Aziz and another 2013(2) SCC 488 and this Court in Dr. Jasminder
Kaur vs. Raj Karan Singh Boparai CRM-M-20260-2008 has held that the
drill of Section 202 of the Cr.P.C. is mandatory in nature.
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7. A two Judge bench of Hon’ble Supreme Court in Abhijeet
Pawar (supra), speaking through Justice A.K. Sikri has held:-
“28. No doubt, the argument predicated on Section 202 of the
Cr.P.C. was raised for the first time by A-1 before the High
Court. Notwithstanding the same, being a pure legal issue
which could be tested on the basis of admitted facts on record,
the High Court could have considered this argument on
merits. It is a settled proposition of law that a pure legal issue
can be raised at any stage of proceedings, more so, when it
goes to the jurisdiction of the matter (See : National Textile
Corpn. Ltd. Vs. Nareshkumar Badrikumar Jagad; [(2011) 12
SCC 695].
29. We may like to record that though Mr. Bhatt had refuted
the arguments founded on Section 202 of Cr.P.C., even he had
submitted that in case this Court is satisfied that mandatory
requirement of Section 202 is not fulfilled by the learned
Magistrate before issuing the process, this Court can direct
the Magistrate to do so. Mr. Bhatt, for this purpose, referred
to the judgment in the case of the National Bank of Oman.
30. For the aforesaid reasons, Criminal Appeal arising out of
SLP (Crl) No. 9318 of 2012 is allowed thereby quashing the
notice dated 24 th November, 2009 in respect of A-1 with
direction to the learned Magistrate to take up the matter
afresh qua A-1 and pass necessary orders as are permissible
in law, after following the procedure contained in Section
202, Cr.P.C.”
8. A two Judge bench of the Hon’ble Supreme Court in National Bank
of Oman(supra) has held as follows:
“10. We are of the view that the High Court has correctly held that the
above-mentioned amendment was not noticed by the C.J.M. Ahmednagar.
The C.J.M. had failed to carry out any enquiry or ordered investigation
as contemplated under the amended Section 202 of the Code of Criminal
Procedure. Since it is an admitted fact that the accused is residing
outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in
the view taken by the High Court. All the same, the High Court instead of
quashing the complaint, should have directed the Magistrate to pass
fresh orders following the provisions of Section 202 of the Code of
Criminal Procedure. Hence, we remit the matter to the Magistrate for
passing fresh orders uninfluenced by the prima facie conclusion reached4 of 5
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by the High Court that the bare allegations of cheating do not make out a
case against the accused for issuance of process under Section 418 or
420 of the Indian Penal Code. The C.J.M. will pass fresh orders after
complying with the procedure laid down in Section 202 Code of Criminal
Procedure, within two months from the date of receipt of this order.”
Further, a Co-ordinate bench of this Court in Dr. Jasminder
Kaur (supra) has made the following observations:
“Therefore, in view of the law laid down, on which reliance has been
placed by learned counsel for the petitioners, I find that the examination
of the complainant and eye witness alone under Section 200 Cr.P.C.
cannot be held as the enquiry as prescribed under Section 202 (1)
Cr.P.C. Admittedly, in the present case, no enquiry as prescribed under
Section 202 (1) Cr.P.C. has been made by the Court and non-compliance
of the provisions of Section 202 (1) Cr.P.C., which are mandatory in
nature, the summoning order cannot be passed where the respondents are
residing outside the jurisdiction of the Court where the complaint was
filed.”
9. In view of the discussion above, the present petition is allowed
and summoning order dated 29.05.2012 (Annexure P-11) issued by learned
Judicial Magistrate Ist Class, Faridabad is set aside. The matter is remanded
back to concerned Court to consider the matter afresh in accordance with
law, by taking recourse to Section 225 BNSS.
10. The petition is disposed of accordingly.
11. Pending miscellaneous application(s), if any, shall also stand
disposed of.
(HARPREET SINGH BRAR)
20.01.2025 JUDGE
Ajay Goswami Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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