Delhi District Court
Shravan Gupta vs State on 5 May, 2025
1
IN THE COURT OF SH. SUMIT DASS, ADDITIONAL SESSIONS
JUDGE - 05, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Criminal Revision No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024
679/2024 and 689/2024
1. Shravan Gupta
s/o Sh. Rajiv Gupta
r/o 44-A, Amrita Shergil Marg,
New Delhi-110003.
2. Shilpa Gupta
w/o Sh. Shravan Gupta
r/o 44-A, Amrita Shergil Marg,
New Delhi-110003.
(Presently at London)
3. Rakshit Jain
s/o Late Sh. Surendra Nath Jain
r/o H.No.C-14, Green Park Extn.
South West, Delhi - 110016.
4. Rajender Singh
s/o Sh. Ram Kishan
r/o H.No.110, Village Shikohpur,
Gurugram, Haryana -122004.
5. Arun Mitter
s/o Sh. Brig. Vishwa Mitter
r/o C-29 Mayfair Garden,
New Delhi-110016.
6. Sh. Rajeev Gupta
s/o Sh. B.D.Gupta
r/o H.No. 8/3, DLF, Phase-I,
2nd floor, Gurugram, Haryana.
7. M/s MGF Developments Ltd.
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Through its Authorized Representative
Mr. Saurabh Singh Rathore
s/o Sh. Pramod Kumar Singh
r/o 220, 1st floor, Vartalok Society,
Sector-4C, Vasundhra, Ghaziabad,
Uttar Pradesh. .......Revisionists
VERSUS
1. State of NCT of Delhi
Through its Addl. Public Prosecutor
Patiala House Courts, New Delhi. ...... Respondent
Date of Institution : 12.12.2025
Date of Decision : 05.05.2025
ORDER (ORAL)
1. In terms of present order the captioned revision petitions titled as
Rakshit Jain v/s State, Shilpa Gupta v/s State, Arun Mitter v/s State, Rajeev
Gupta v/s State, Shravan Gupta v/s State, M/s MGF Development ltd. v/s
State and Rajender Singh v/s State are being dealt with.
2. The challenge primarily in the revision petitions is the order
dated 16.11.2024 passed by Ld. Chief Judicial Magistrate [in short Ld. CJM]
whereby and whereunder the accused persons including the companies
named therein were summoned for the offences punishable U/s
409/420/120B of the Indian Penal Code, 1860 [in short IPC]. The said
summoning order was challenged first by the revisionist namely Rakshit
Jain and Shilpa Gupta as two revision petitions were filed/assigned to this
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Court. Subsequently other revision petitions were also transferred/assigned.
2.1 For the sake of convenience I am taking the revision petition of
Shravan Gupta v/s State as a lead one as there are certain other facts which
were pleaded in the same.
3. The first order of importance which I had passed is a detailed
order dated 13.12.2024 wherein the order passed by Ld. CJM dated
16.11.2024/the impugned order was stayed/the proceedings before the Ld.
Trial Court were stayed. I shall be quoting the said order in the later part of
the judgment for the reason that the primary line of arguments which was
adopted by the said revisionists as so manifested in the order dated
13.12.2024 was that the order dated 16.11.2024 passed by the Ld. CJM was
not a reasoned one /failed to take into account the facts of the case and other
related aspects and it was only a mechanical order.
3.1 Subsequently as mentioned above five other revision petitions
were assigned/ transferred to this Court and now there are seven revision
petitions. Pursuant thereof a time schedule was fixed wherein it was directed
that either side to wrap up the arguments. Infact two days period was granted
considering the fact that this case has been repeatedly argued at the Sessions
level, Hon’ble High Court and before the Hon’ble Apex Court in the first
round of litigation whereby the FIR was lodged.
3.2 However, enormous volume of arguments supplanted with case
laws on virtually each and every aspect was contended. The scope or canvas
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of the revision petitions was enlarged considerably. Infact what were the
earlier submissions/part of arguments which were evident in the order dated
13.12.2024 i.e. the order with regard to challenge of cognizance now it
became a sort of a challenge whereby this Court was asked to look into
various aspects including the merits of case – offence having been
committed, if so by whom/at whose instance and other related aspects.
Hence, to put the discussion in continuity/in proper narrative, I am
compartmentalizing the submissions in two parts – (i) arguments viz a viz the
aspect of cognizance on the grounds as mentioned above [those more or less
are contained in the order dated 13.12.2024] and (ii) arguments on merits of
the case, which relate to the challenge of the summoning order/penal
provisions and applicability thereof.
4. However, at the same time in my opinion in case part (I) i.e. viz a
viz the cognizance aspect are over and the revisionists are successful then
there is no need to deal with the entire arguments insofar as part (II) is
concerned as the matter would be remanded back. However, to do complete
justice with the parties particularly the fact that the matter was argued by a
battery of Senior advocates, I would be quoting the arguments which were
addressed as well.
5. ARGUMENTS :-
Part I – As indicated above the order dated 13.12.2024 sums up
the same to a large extent. I shall be quoting the said order.
Part II – Starting with Mr. Vikas Pahwa, Ld. Sr. Advocate on
behalf of Shilpa Gupta he had contended that this criminal indictment is not4/36
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5genuine but a concocted one as there is a delay of more than a decade. The
transactions which were complained or made actionable were all duly
accounted for in the books of accounts. In fact these were all commercial
transactions between the parties duly noted/verified/trusted/acted upon in
order to benefit mutually. He further states that the matter had went through
arbitration and also through the NCLT and later on recourse to criminal
prosecution has been taken. He had further argued that the balance sheet of
the joint venture company Emaar-MGF were duly audited showing the
entire payments. All such facts were effaced by the investigating officer and
in fact a final report had to be filed however the same did not see the light of
the day and hurriedly a charge sheet was filed and more hurriedly the
cognizance of the offence was taken. He also argued that it was a civil
offence but the same was given a colour of a criminal offence. The second
line of arguments which he had adopted was that it was inconceivable that
the complainant did not know as to the constitution of the two companies i.e.
M/s Saum and M/s Nanny. In fact when there was a decoupling of the joint
venture it was also mutually agreed that there would not be any action taken
against M/s Saum and M/s Nanny. He further argued that insofar as the
question with regard to the affidavits of the applicant having been sworn in
outside India that by itself does not debar the revisionist to maintain the
revision petition before this Court and in support thereof had relied upon the
judgment titled as Dr. Elizabeth Raja v/s Inspector General of Registration
by the Hon’ble Madras High Court.
Mr. Pahwa further argued that the affidavits were notarized in
U.K. and there is no infirmity/illegality on the said aspect which would debar5/36
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6the revisionist Shilpa Gupta. Ld. Sr. Advocate thereafter had dealt upon the
role of revisionist Shilpa Gupta and contended that she was the non
executive director in the companies and she was not the signatory; she was
not the beneficiary; she had not aided or abetted the transfer of funds and the
investigating officer had not even spelled correctly her role particularly the
fact that she was not the decision maker in any of the companies involved in
the deal including the joint venture company Emaar-MGF or otherwise
MGF Ltd. Mr. Pahwa has taken umbrage that the IO has not clearly spelled
out the role of the revisionist/accused which is quite evident by the filings
made to the MCA that at relevant times she was not involved in the said
companies.
He further argued that there was no mens-rea attributable to her.
Hence, had there been a reasoned order passed by the Ld. Trial Court even at
the stage of cognizance these facts would have been noted.
Mr. Pahwa had further contended that the joint venture
visualized that the management was with MGF and the financial part were
with Emaar. Mr. Sanjay Malhotra was the CFO who was the Emaar
nominee. To contend that the payments made to M/s Nanny and M/s Saum
between 2010 to 2016 and 2012 to 2016 respectively would escape the
notice of the CFO is completely untenable. The payments were all
documented and subject to audit. Shilpa Gupta in any scenario cannot be
held vicariously liable as she was the non-executive director/in a sort of
ineffective director.
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7On behalf of revisionist Rakshit Jain Mr. Amit Prasad, Advocate
had addressed the arguments and contended that first of all the charge sheet
was filed hurriedly though the investigation was still ongoing. He contended
that the date on the charge sheet is 18.07.2024 whereas there is a notice U/s
41A Cr.P C issued to Rakshit Jain which is returnable for 23.07.2024 and
issued on 22.07.2024. He states that applications under Section 156(3)
Cr.PC were pending and the same were being dealt in and to obviate the
same the charge sheet was filed hurriedly. He has relied upon the orders
passed by Ld. CMM dated 05.08.2024 and 08.08.2024. Mr. Amit Prasad
further contended that post introduction of M/s Nanny and M/s Saum the
share of the joint venture infact increased from 67.5% to 68% and thus, there
was no loss whatsoever to the joint venture. The acts of introduction or
involvement of M/s Nanny and M/s Saum were all known throughout and
also ratified by the Board of the Joint Venture company. Rakshit Jain had not
in any manner benefitted or otherwise gained except the fact that only a sum
of Rs. 7 lacs was transferred into the account of Rakshit Jain from M/s
Nanny and the same was also returned by him. Thus, otherwise also except
mere being signatory there is nothing qua him warranting his association or
involvement in the present criminal case.
On behalf of revisionist Rajender Singh Sh. Vijay Agarwala
Advocate had addressed the submissions and contended that there was no
fair investigation. The facts of the complaint/case were not at all fairly
investigated by the police. They had filed a detailed representation and the
IO had only filed the said representation alongwith the charge sheet without
even barely going into the same. There was no list of witnesses attached7/36
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8alongwith the charge sheet. There was no overt act attributable to the
revisionist Rajender Singh. In fact it was a civil case which was given the
colour of a criminal case. Sh. Vijay Aggarwala. Advocate further contended
that there is a difference at the time of taking the cognizance of the offence
and followed up by the summoning of the accused and these two provisions
are to be considered independent and once the Court takes cognizance U/s
190 Cr.PC it proceeds to Section 204 Cr.PC wherein it summons the accused
persons to face trial and the order – the common order can be considered by
the revisional Court to gauze the existence of cognizable offence(s) and as to
the sufficiency of the material warranting the summoning of the accused
persons. Mr. Vijay Aggarwala further contended that insofar as the applicant
Rajender Singh is concerned he had no role whatsoever and there could not
have been a summoning order passed U/s 406/420 IPC in view of the
judgement passed by the Hon’ble Apex Court in Delhi Race Club 1940 v/s
State of UP 2024 SCC Online Supreme Court 2248. To that extent also the
impugned order is also liable to be set side.
Mr. Gautam Khajanchi, Advocate had addressed submissions on
behalf of Rajeev Gupta and Arun Mitter and supported the submissions
adopted by the other advocates and contended that insofar as the entire
offence as alleged is concerned the entire facts were also within the
knowledge of the complainant/ complainant’s company’s official and it was
a fabricated/manipulated case projecting only one side of the story.
Mr. Tanveer Ahmed Mir, Ld. Sr. Advocate had addressed
arguments on behalf of remaining revisionists i.e. Shravan Gupta and M/s
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MGF and stated that it was a marriage which spanned for 10 years between
two corporate entities. The marriage was consummated in a sense that they
knew about the working of the joint venture as to what the other partner was
doing. The consent qua the acts of a partner can also be rationally inferred.
The outcomes of their actions as reflected in the balance sheets which were
duly audited. The so called projects qua whom the alleged companies M/s
Nanny and M/s Saum were introduced to allegedly siphon off funds – the
said projects have been completed/delivered and the gains have also been
mutually enjoyed. Nothing remains as on now. The acts of the complainant
are only to arm twist them/implicate them in criminal case. In fact M/s
Nanny and M/s Saum were introduced somewhere in the year 2010 and to
contend that Rs. 180 crores were siphoned off and that too in many years
moreso when the accounts are audited is inconceivable. The impugned order
suffers from a copy cut paste defect as it did not consider the material in
proper perspective and did not even look into the statement/ the documents
annexed alongwith the charge sheet. He submits that earlier also there was
one litigation where Anil Bhalla had challenged the order of summoning and
the Hon’ble High Court had remanded the matter. The order which has been
passed dated 16.11.2024 is a order which lacks the rational basis for calling
the accused persons to attend/face the trial as the controversy has not at all
been appreciated firstly by the Ld. Trial Court and neither it has been
specified. He further stated that there was no loss whatsoever to the J.V.
company as the share of the joint venture had increased. He further stated
that the email IDs perse which were all used at that time would reveal that
Emaar would be aware about the constitution of the firm M/s Nanny and M/s
Saum and their association as well with M/s MGF.
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Mr. Mir had taken me to the various agreements and contended
that such agreements benefitted the joint venture company and the projects
were completed and there was no stripping of funds and siphoning of funds.
He further argued that the cognizance order/summoning order ought to be
based on the material which is collected by the Investigating Agency –
whereupon the Ld. CJM ought to have culled out the same may be the bare
minimal and thereafter proceed to independently apply his minds to form his
definite opinion in respect to the existence of the ingredients of the
cognizable offence(s) which is so ultimately reflected in the summoning
order. He submits that there is nothing on the said premises and as a sequitur
or as a follow up without due adherence of the aforesaid the summoning
order has been passed which is liable to be set aside.
5. Written notes were filed in addition to. Reliance was placed on
the following judgments:
Sunil Bharti Mittal v/s CBI (2015) 4SCC 609
Maksud Saiyed v/s State of Gujrat & Ors. 2008 (5) SCC 668.
Kusum Sandhu v/s Ved Prakash Narang (2008) SCC Online Delhi
873.
Rana Ram v/s State of Rajasthan & Anr. Crl. Misc. Case No. 4983 of
2024.
Pepsi Food Ltd. & Ors. v/s Special Judicial Magistrate & Ors. AIR
1998 SC 128.
Yahoo! India Pvt. Ltd. v/s State & Anr. 2012 DRJ (130) 656.
Thermax Ltd. v/s K.M.Johny (2011) 13 SCC 412.
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Dilawar Singh v/s State of Delhi 2007 (12) SCC 641.
Bhagwant Singh v/s Commissioner of Police & anr. AIR 1985
Supreme Court 1285.
Ashok Chawla v/s Ram Chander Garvan, Writ Petition (Crl.)
1429/2010.
Ravindranatha Bajpe v/s Mangalore Special Economic Zone (2022)
15 SCC 430.
Pooja Ravindra Devi Dasani v/s State of Maharashtra & Anr. (2014)
16 SCC 1.
6. Countering the aforesaid arguments on behalf of the complainant
Sh. Pramod Kumar Dubey, Ld. Sr. Advocate had argued that exhaustive
detailed arguments were advanced which were not even warranted at this
stage as the stage is that of cognizance/summoning order which warranted a
minimal threshold only unlike the stage of charge or acquittal. No prejudice
is going to be caused to any of the revisionist as they would be heard later on.
In fact all such detailed arguments have been advanced earlier many a times
and all have been negated. Ld. Sr. Advocate states that taking cognizance
and summoning the accused persons in a case emanating from a charge sheet
– proceeding further only requires concurrence with the opinion of the
Investigating Officer and the concurrence or affirmation is evident from the
impugned order. At the stage of charge the probative value of the material
collected can be considered and not at this juncture itself.
Ld. Sr. Advocate further argued that there was an admission
made during the proceedings before the Ld. ASJ by the revisionist and that
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admission was sought to be withdrawn or explained before the Hon’ble High
Court, which was not permitted by the Hon’ble High Court. In support he
has read over the order passed by the Ld. ASJ and contended that the
admission was made after a question was put to the Ld. Sr. Advocate there
and time was also granted to reply. As such the contentions so agitated are
precluded by the doctrine of estoppel. Ld. Sr. Advocate further contended
that the scope of revision is quite restricted to there being an illegality,
incorrectness and impropriety in the order passed by the Ld. Trial Court and
not re-appreciating the same. He submits that no illegality, incorrectness or
impropriety has been stated in the impugned order nor pointed out in the
memorandum of the grounds in the revision petition. There is no perversity
pointed out. Repeatedly this argument was taken that it is a civil dispute
which otherwise has been dealt in detail earlier and also negated. All such
pleas are matter of trial and cannot be countenanced as here under at this
juncture. The revisionist were all obliged to disclose their relationship with
the companies which they failed to do so [M/s Nanny and M/s Saum]. Ld.
Sr. Advocates contends that there is a difference insofar as taking cognizance
on a police charge sheet or otherwise upon a complaint. Insofar as taking
cognizance on a charge sheet is concerned no detailed reasons are required
unlike in complaint cases. Ld. Sr. Advocate stated that the case of Delhi
Race Club also pertained to a complaint case and not on the basis of a police
charge sheet. It is a summoning order which was challenged. As such the
said ratio is inapplicable. He has justified the impugned order and contended
that the same is based on the charge sheet and its conclusions. Insofar as the
non filing of Section 65-B certificate is concerned the same can also be filed
at a later stage. There is no need to file any list of witnesses as alleged. He
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has particularly read over the contents of the charge sheet and contends that
each individual revisionist is involved in the commission of the offence.
Insofar as Shilpa Gupta is concerned for illustration she has received Rs. 20
lacs in the year 2012 and returned in the year 2019. All the persons were
actively involved in the conspiracy and had the knowledge as to the
utilization of funds which were received/taken through the said entities i.e.
M/s Saum and M/s Nanny. Insofar as their action been done in good faith the
same is also a question of trial. He further contends that there is also
concealment of facts on behalf of the revisionist. The Enforcement
Directorate has also lodged an ECIR recently. The offence is well etched.
I have tried to extract the arguments as relied upon by either side.
Written notes were also filed incorporating the judgments relied upon.
Reliance has been placed on the following :
Sanjay Bhandari v/s Income Tax Office 2024 SCC Online Delhi 7747.
Gurmeet Singh Sidana v/s Ameek Singh Sawhney 2023 SCC Online
Delhi 6230.
Arulvelu v/s State (2009 10SCC 206.
Bhushan Kumar v/s State (2012) 5 SCC 424.
State of Gujrat v/s Alfroz Mohd. Hasan Fatta (2019) 20 SCC 539.
Pradeep S.Wodeyar v/s State of Karnataka (2021) 19 SCC 62.
Satya Narain Musadi v/s State of Bihar (1980) 3 SCC 152.
State of Karnataka v/s T.Naseer @ Nasir @ Thandiantavida Naseer @
Umar Hazi @ Hazi & Ors. 2023 INSC.
Virupakshappa Gouda and Anr. v/s State of Karnataka & Anr. (2017)
5 SCC 406.
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Kunhayammed v/s State of Kerala (2000) 6 SCC 359.
7. Before I proceed further the backdrop of the facts of the case in
brief are as here under :
i. The present matter is between two erstwhile partners who had been
litigating against each other tooth and nail. In fact the FIR was sought
to be lodged before the EOW by the complainant. Ultimately the said
FIR was registered upon the directions passed by Ld. CJM in terms of
order dated 16.04.2021. I am extracting the operating part of the order
as here under :
Heard. Perused.
As the facts show that a huge amount of monies got transferred from
the complainant company to the other entities and as per the
allegations the said monies was misappropriated by alleged persons
for their personal use and benefit. It is also highlighted that the entities
to which monies were transferred were related/controlled by alleged
persons. The said monies were supposed to be for the development
work in terms of JDAs as per the complainant. In this background,
considering the proportion of the money transferred through accused
no. 1 and its routing to several entities controlled by accused persons
and subsequent reaching to the hands of accused persons has to be
investigated. Collection of evidence is important in the present matter
as the transfer of funds from the complainant company to several
entities, relationship of alleged persons with those entities, receipt of
money by the alleged persons from those entities has to be
ascertained. The facts necessitate need for field investigation as the
evidence in the present matter cannot be produced by the complainant
on its own.
Further, the complaint discloses the fact of inducement through
misrepresentation by the accused persons and parting of money
through the acts of accused no. 1 in conspiracy with other accused
persons. So far as the law on registration of FIR on a complaint
disclosing cognizable offences is concerned, same is settled. The
Hon’ble Supreme Court in Lalita Kumari Vs. Govt. of U.P. has held in
para 111 as under:-
1) Registration of FIR is mandatory under section 154 of the Code, it
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15the information discloses commission of a cognizable offence and no
preliminary enquiry is permissible in such a situation.
2) If the information received does not disclose a cognizable offence
but indicates the necessity for an inquiry, a preliminary inquiry may be
conducted only to ascertain whether cognizable offence is disclosed
or not.
3) If the inquiry discloses the commission of a cognizable offence, the
FIR must be registered. In cases where preliminary inquiry ends in
closing the complaint, a copy of the entry of such closure must be
supplied to the first informant forthwith and not later than one week. It
must disclose reasons in brieft for closing the complaint and not
proceeding further.
4) The police officer cannot avoid his duty of registering offence if
cognizable offence is disclosed. Action must be taken against erring
officers who do not register the FIR it information received by him
discloses a cognizable offence.
5) The scope of preliminary inquiry is not to verify the veracity or
otherwise of the information received but only to ascertain whether
the information reveals any cognizable offence.”
Accordingly, in the considered view of this Court the complaint
discloses commission of cognizable offences and it is directed that on
the basis of complaint an FIR be registered against accused persons
and same be investigated upon.
Application is allowed.
Copy of the order be sent to concerned IO/ACP for compliance.
Put up for compliance report on 19.04.2021.
Copy of this order be also sent to all the parties through
email/Whatsapp.
It is certified that the connection during hearing through Cisco Webex
was uninterrupted and the voice and video was clear and the Ld. APP
for the State and Ld. Counsel for the parties appearing through V/C
did not raise any objection regarding the quality of V/C.
ii. The said order was challenged before the Ld. ASJ and finally in terms
of order dated 23.11.2021 the said order was upheld wherein it was
observed as here under :
13.1 am conscious of my limited role in revisional jurisdiction but I
am equally conscious of the onerous duty of monitoring the
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16investigations to ensure that no crime committed remains unnoticed
and no criminal goes scot-free. Recently, Hon’ble Apex Court in the
matter of Vinubhai Haribhai Malaviya and Ors. Versus The State of
Gujarat and Anr., CRIMINAL APPEAL NOS.478-479 OF 2017,
DOD 16.10.2019, while recognizing the power of the court to monitor
investigation, has observed here as under:-
“17. It is clear that a fair trial must kick off only after an investigation
is itself fair and just. The ultimate aim of all investigation and inquiry,
whether by the police or by the Magistrate, is to ensure that those who
have actually committed a crime are correctly booked, and those who
have not are not arraigned to stand trial.
That this is the minimal procedural requirement that is the
fundamental requirement of Article 21 of the Constitution of India
cannot be doubted. It is the hovering omnipresence of Article 21 over
the CrPC that must needs inform the interpretation of all the
provisions of the CrPC, so as to ensure that Article 21 is followed both
in letter and in spirit.
18. As fundamentally, justice not only has to be done but also must
appear to have been done, the residuary jurisdiction of a court to direct
further investigation or reinvestigation by any impartial agency, probe
by the State Police notwithstanding, has to be essentially invoked if
the statutory agency already in charge of the investigation appears to
have been ineffective or is presumed or inferred to be not being able to
discharge its functions fairly, meaningfully and fructuously. As the
cause of justice has to reign supreme, a court of law cannot reduce
itself to be a resigned and a helpless spectator and with the foreseen
consequences apparently unjust, in the face of a faulty investigation,
meekly complete the formalities to record a foregone conclusion.
Justice then would become a casualty. Though a court’s satisfaction of
want of proper, fair, impartial and effective investigation eroding its
credence and reliability is the precondition for a direction for further
investigation or reinvestigation, submission of the charge-sheet ipso
facto or the pendency of the trial can by no means be a prohibitive
impediment. The contextual facts and the attendant circumstances
have to be singularly evaluated and analysed to decide the needfulness
of further investigation or reinvestigation to unravel the truth and
mete out justice to the parties. The prime concern and the endeavour
of the court of law is to secure justice on the basis of true facts which
ought to be unearthed through a committed, resolved and a competent
investigating agency.”
Further, Hon’ble Delhi High Court in the matter of Smt. Neera Singh
vs The State (Govt. Of NCT Of Delhi) citations:
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17138 (2007) DLT 152, 1 (2007) DMC 545 has observed that huge
money transactions should be reported to be income tax authorities by
the courts.
14. In the case at hand, evidently Rs. 180 Crores seems to have
exchanged hands without any apparent quid pro quo for the said
transaction. The spectre of money laundering and tax evasion also
needs to be addressed. In view of the same, concerned SHO is hereby
directed not only to ensure a thorough and impartial probe in the
instant matter, in compliance of the order dated 16.04.2021, but is
further requested to report the matter to the Income Tax Authorities
and Enforcement Directorate to rule out the possibility of any tax
evasion and money laundering in the case at hand.
15. The revision petition accordingly stands disposed off.
iii. Third round of litigation went to the Hon’ble High Court. Subsequent
thereto Hon’ble High Court was pleased to maintain the said order as
it is with the minor changes and observation with regard to the
investigation by ED. Again I am quoting the said order/operative
portion thereof which reads as here under :
25. The judgments relied upon by the petitioner would not help them
much on facts of this case. In Dr.Rajani Palri Wala (supra) the report
filed by EoW was a detailed report after examining the documents
and witnesses and it was held by the learned Single Judge that it was
a cancellation report under Section 173(1) (supra) and not a
preliminary status report, hence the observations were made only
on the context of the facts of that case. However, in the present case
the ATR cannot be starched by any means to say it is a cancellation
report. In Harpal Singh Arora (supra) a detailed enquiry was
conducted over a period of eight months with review by several
level of functionaries and whereas in the present case no detailed
enquiry appear to have been conducted and it is only a preliminary
or a summary enquiry. Rather in XYZ (supra) and Lalita Kumari
(supra) the intent is to ensure if a cognizable offence is made out the
investigation is to be carried out in the terms of decision in Lalita
Kumari (supra). The non-consideration of an ATR in any case
cannot be considered as fatal, especially, where the learned Trial
Court and the learned Revisional Court by a reasoned order had
reached a conclusion a cognizable offence is made out and it require
police investigation. Even Periyar and Pareekanni Rubbers Ltd.
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(supra) and Himalayan Coop. Group Housing Society (supra) are
not relevant since in the present case the submissions made by the
lawyers were admissions of fact and not merely concession(s).
Admittedly there is no challenge in this Writ Petition qua such
admissions made and now the petitioner cannot be allowed to
retract.
26. In the circumstances, the petition has n has no merits and is
dismissed. Pending application(s), also stands disposed of.
However the directions contained in para 14 are quashed as it is very
early to pre-suppose the guilt. The EOW is yet to investigate the
matter in detail and if it felt necessary, the State has every right to
initiate such other proceedings as well.
iv. The said order was challenged before Hon’ble High Court finally. The
SLP was also dismissed. The observation made by Hon’ble Apex
Court are as here under:
5. Having regard to the well-settled parameters governing the
jurisdiction under Section 156(3) of CrPC for the registration of an
FIR where a cognizable offence is alleged, no case is made out for
interference. However, it needs to be clarified that the observations
contained in the orders of the trial court, the Additional Sessions
Judge and of the High Court in the impugned judgment dated 12
September 2022 shall not impede the petitioner from seeking access
to legal remedies as available in law.
6 . Subject to the aforesaid clarification, the Special Leave Petition is
dismissed.
7 . Pending application, if any, stands disposed of.
v. Ideally all these observations/findings ought to have been taken note
of by the Ld. CJM in the impugned order for the reason that without
giving the backdrop of the case the summoning order should not have
been passed. I shall deal with the said aspect later on – the effect of
glossing thereof.
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8. Before I deal further with the arguments which have been raised
by Ld Counsel for the revisionists it would be appropriate to take note of the
proceedings before the Ld. Trial court just before the order dated 16.11.2024
i.e. the impugned order.
8.1 In fact there are two orders of importance i.e. 05.08.2024 and
08.08.2024. At that point of time one of the proposed accused was pursing
the application U/s 156(3) Cr.PC for further investigation and the Ld. CJM
has opined as here under :
05.08.2024
One steno is on leave and no substitute steno is provided by the
Admin. Branch.
Present: Ld. APP for the State.
Sh. Tanvir Ahmed Mir, Sh. Amit Prasad, Sh.
YudhistarSingh,.Sh.Prabhav,Sh.YashDuttandSh.
Yuvraj Bansal, L.d. Counsels for the applicant.
Sh. Madhav Khurana, Ld. Counsel for the
complainant in FIR No. 146/2022, PS EOW.
Status report filed by the IO wherein it is stated that all the points
mentioned in the application filed by the applicant, have already been
investigated. It is further stated that investigation of the case is being
conducted in a fair and impartial manner. IO has further opposed the
application filed by the applicant stating that the investigation of the
present case is to be conducted independently by the investigating
agency and the directions as such mentioned in the application filed
by the applicant or any of the parties to the investigation agency are
not maintainable.
It is also submitted that investigation in the present case is at final
stage and status report will be filed at the earliest.
I.d. Counsel for the applicant has placed reliance on the citations
Mehboob Dawood Shaikh Vs. State of Maharashtra (2024) 2
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Supreme Court cases 362, Sudhir Bhaskarrao Tambe Vs. Hemant
Yashwant Dhange & Ors. (2016) 6 SCC 277, Babubhai Vs. State of
Gujarat & Ors. (2010) 12 SCC 254 and Sakiri Vasu Vs. State of Uttar
Pradesh & Ors. (2008) 2 SCC 409 has argued that the accused in
view of the above judicial precedents has a right to free and fair trial
and thus directions for monitoring of the investigation on the points
as mentioned in the application are called for.
In response, Ld. Counsel for complainant in FIR No. 146/2022, PS
EOW, while placing reliance on Sanjiv Rajendra Bhatt Vs. Union of
India and Others (2015) SCC Online SC 941, have opposed the
application filed on behalf of the accused stating that applicant is the
accused in the present case and has no locus to file the monitoring
investigation at this stage.
Ld. APP for the State seeks time to argue on the application. Put up
for further proceedings on 08.08.2024.
Meanwhile also issue notice to the lo to appear in person on the
NDOH.
*****************************************************
08.08.2024
Present: Ld. APP for the State.
Sh. Madhav Kumar along with Sh. Nishaank Mattoo,
Sh. Daksh Ahluwalia, Sh. Varun Thapa, Sh. Shaurya
Singh, Sh. Rishabh Munjal and Sh. Ishan K. Dubey,
Ld. Counsel for the complainant in FIR No.146/ 2022,
PS EOW.
Sh. Tanvir Ahmed along with Sh. Amit Prasad, Sh.
Yudhistar Singh, Sh. Prabhav Ralli and Sh. Yash
Dutt, Ld. Counsel for applicant.
10 is not present.
An application for monitoring of investigation was filed on the
previous date and is listed today for consideration.
Notice on the application was issued to the IO for today.
Request is received from the IO stating that he is unable to appear
today as he is on medical leave.
Meanwhile 10 has also filed the final report in the form of
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chargesheet which is also listed for consideration today.
Detailed arguments have been addressed by Ld. Counsel for the
applicant as well as Ld. Counsel for the complainant.
It is stated by Ld. Counsel for the applicant that applicant has been
compelled to file the present monitoring application due to inaction
of the 10 on several key aspects raised by the accused during the
course of the investigation, without which the investigation could not
have reached its logical conclusion. It is further stated that the present
dispute although given a criminal colour has deep commercial
overtones and at most is a dispute of civil nature, with various
litigations on the civil and criminal side ongoing between the parties.
It is further stated that accused has equal right to a fair investigation
and the investigating agency is examining complex commercial
transactions in a biased manner so much so that even the method of
examination of the accused by investigating agency is known to the
complainant. It is further submitted that chargesheet has been filed in
an abrupt manner by the IO.
It is further argued that the present application is not rendered
infructuous solely because the chargesheet has been filed and that the
present application under Section 156 (3) CrPC or even an
application seeking further investigation under Section 173 (8) CrPC
have the same essence, which is to aid the court to arrive at the truth
of the matter.
It is further argued that even otherwise in view of Hon’ble Apex
courts judgment in Vinubhai Haribhai Malaviya Vs. State of Gujarat
and Anr. (2019) 17 SCC 1 power of this court to monitor an
investigation or even to order further investigation is inherent and the
said power can also be exercised suo-moto.
On the other hand Ld. APP for the State as well as Ld. Counsel for the
complainant have opposed the above submission.
While Ld. APP for the State has argued that since the chargesheet has
been filed the present application has become infructuous. It is
vehemently argued by Ld. Counsel for the complainant that by way
of this application accused is attempting to do indirectly what they
cannot do directly i.e. to interfere with the investigation and direct
the investigating officer to investigate with respect to certain aspects.
It is further argued that that accused cannot direct the investigation to
be conducted in particular manner and has placed reliance on the
following case laws;
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a. Sanjiv Rajendra Bhatt v. Union of India (2016) 1 SCC1.
b. Union of India v. W.N. Chadha 1993 Supp (4) SCC 260.
c. Romila Thapar v. Union of India (2018) 10 SCC 753.
d. Arvind Kejriwal v. Enforcement Directorate 2024 SCC OnLine
Del 2685.
e. Manohar Lal Sharma v. Principal Secy (2014) 2 SCC 532.
f. P. Chidambaram v. Directorate of Enforcement e. (2019) 9 SCC 24.
g. Ajeet Patel and Others v. The State of Madhya Pradesh and Others
WP No. 20415 of 2024.
It is further argued that accused cannot interfere during the stage of
investigation and only gets an opportunity to present his defense once
he appears before the Court pursuant to the issuance of summons
after cognizance is taken and process is issued in terms of Section
202 Cr.P.C. Ld. Counsel for the complainant has further placed
reliance on the following case law to endorse his submissions.
a. Union of India v. W.N. Chadha 1993 Supp (4) SCC 260.
b. Dinubhai Boghabhai Solanki v. State of Gujarat (2014) 4 SCC 626.
c. P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24.
d. Ajeet Patel and Others v. The State of Madhya Pradesh and Others
WP No. 20415 of 2024.
It is further argued that in Vinubhai‘s case (supra) the accused had
filed an application under Section 173(8) CrPC after cognizance had
been taken and accused had already entered appearance and that Ld.
Counsel for accused has erroneously placed reliance on paragraph 44
of the said judgment. It is thus prayed that the application filed by the
accused be dismissed.
Arguments heard. Record perused.
The factual matrix of the present FIR relates to
agreement/transaction entered between the complainant company
with M/s Saum Infra Pvt. Ltd. and M/s Nanny Infrastructure Pvt. Ltd.
It is argued that the complainant company was introduced to enter
into joint development agreements with entities related to the
accused company without disclosing their relationship with the
accused company and the complainant company was not aware of
the association of accused company with the above mentioned
entities.
Final report in the present case has been filed after investigation
spanning over almost two years, and runs into about 9000 pages.
Cognizance of the offence is yet to be taken as the record is
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voluminous
The application per-se has been filed by the applicant for monitoring
of investigation and filing of chargesheet indubitably renders the said
prayer infructuous. However in view of the judgment of Hon’ble
Apex Court in Vinubhai (supra) this court is cognizant of its power to
ensure free and fair investigation which includes directing further
investigation after submission of the final report. As is the settled law
this power can be exercised by the court suo-moto depending on the
facts of the each case.
After careful and patient consideration of the submissions made by
both sides and perusal of citations filed in support of the arguments,
this court is of the opinion that a diligent perusal of the voluminous
record in the form of final report filed by the IO is required before
deciding the present application and any orders on the application of
the accused at this stage would be premature. Hence this court is of
the opinion that the present application filed by the accused be kept
pending for consideration, till the time the court has perused the final
report.
Let the said application be tagged alongwith the charge sheet and be
kept pending for consideration till NDOH i.e. 01.10.2024.
8.2 Suffice to note herein that at that point of time the charge sheet
having been filed and the Ld. CJM having kept the option open i.e. after the
perusal of the chargesheet which had a voluminous bunch of documents the
aspect of cognizance/further investigation would be decided. Here I may
connect this with the order passed by the Ld. ASJ [extracted supra]. Thus,
there was a commonality in the observation passed by the Ld. ASJ and the
observations of Ld. CJM in terms of order dated 08.08.2024 that warranted
that the Ld Trial Court would be guided by the observations in the matter of
Veenubhai Haribhai Malaviya & Ors. v/s The State of Gujarat & Anr. Crl.
Appeal No. 478-479 of 2017. To that extent Ld. CJM in terms of order dated
16.11.2024 had jumped over the same or completely effaced the same/
ignored the same.
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8.3 Dealing with the submissions made in the first part i.e. the
impugned order dated 16.11.2024 which has been passed is an unreasoned
one or otherwise in any manner did not take into account the said
observations passed by Ld. Predecessor of the Ld. CJM/ Ld. ASJ. Here it is
relevant to note that the Ld. Predecessor of the Ld. CJM had herself stated
that the application would be dealt in or considered. Still, the said application
having not been disposed of/there being no order qua the said aspect, the
summoning order was passed. In fact the judicial proceedings require to be
continued in consonance with the previous order(s) and there should have
been an adjudication on the said aspect which is amiss or excluded/jumped
over in the present case.
8.4 If I just look at both the observations the same are in sync and in
fact the order passed by the Ld. CJM dated 08.082024 stems from the order
passed by Ld. ASJ wherein there were the directions to monitor the
investigation considering the nature of the offence complained of.
8.5 While the Court adjudicates any application U/s 156(3) Cr.PC
primarily it deals as to the aspect whether it discloses a cognizable offence
which requires to be properly/thoroughly investigated by the police in
accordance with chapter 12 of the Cr.PC. At that point of time the Court
performs the duty which is in a manner is a sort of plenary reminder given to
the investigating agency to comply with it statutory mandate, which it had
failed to do so by not registering the case. This particular object/task is
supplanted or made meaningful by the supervisory jurisdiction to deal with
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or monitor the investigation which facet as mentioned above has been
reminded by the Ld. ASJ. To put it pithily the Court is not only empowered
to direct the investigation but also can supervise the same to ensure fairness
in investigation.
9. Investigation commences upon the registration of the FIR is
concluded by filing of a charge sheet. Section 173(1) & (2) Cr.PC states as
here under:
Section 173(1) :Every investigation under this Chapter shall be
completed without unnecessary delay.
(2) (i)As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the form
prescribed by the State Government, stating-
(a) the names of the parties;
(b)the nature of the information;
(c)the names of the persons who appear to be acquainted
with the circumstances of the case;
(d)whether any offence appears to have been committed
and, if so, by whom;
(e)whether the accused has been arrested;
(f) whether he has been released on his bond and, if so,
whether with or without sureties;
(g) whether he has been forwarded in custody under section
170.
(h)whether the report of medical examination of the woman
has been attached where investigation relates to an
offence under sections 376, 376A, 376AB, 376B, 376C,
376D, 376DA, 376DB, or 376E of the Indian Penal
Code.
(ii) The officer shall also communicate, in such manner as may
be prescribed by the State Government, the action taken by
him, to the person, if any whom the information relating to the
commission of the offence was first given.
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9.1 The word ‘completed without unnecessary delay’ as prescribed
also adds another angle that insofar as the investigation aspect is concerned
the same should be complete. This completeness aspect is important for the
reason that thereupon or the further/later stage of cognizance/summoning of
the accused comes into picture. As mentioned herein by one of the Ld.
Counsel appearing for the accused Rakshit Jain, the said applicant was
served with the notice U/s 41A Cr.PC for a date which was the date after
filing of the charge sheet as it is evident that the charge sheet was ready on
18.07.2024 and in fact this accused was served with a notice U/s 41 Cr.PC on
22.07.2024 directing the petitioner to appear on 23.07.2024. This was
attached as Annexure P-45 in the petition of Rakshit Jain. Thus, in any
scenario the hurriedness in which the charge sheet was filed also ought to
have been considered by the Ld. Trial Court.
It may be also true that the investigation may have been
completed or the IO may have formed his opinion to proceed further but this
aspect ought to have been judicially considered.
9.2 In fact the order passed by Ld. CJM dated 16.11.2024 appears to
be the order which has been passed without going into the contents of the
charge sheet; against the observation passed by the Ld. Predecessor of the
Ld. CJM and also not considering whether it was complete in all aspects. I
may not re-emphasize that the observations passed by the Ld. ASJ ought to
have been complied with as well. To that extent there is an palpable anomaly
which is visible in the said impugned order which to my mind requires to be
rectified. As such in my opinion the impugned order dated 16.11.2024
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suffers from patent infirmity as it did not consider the previous
proceedings/binding observations passed by the superior Court. It thus
becomes an unreasoned order or an order contrary to the record.
10. The next stage is the stage of taking cognizance which is under
Section 190 of the Cr.PC wherein the Court forms a definite opinion or
conclude as to the commission of offence of which it takes judicial notice or
it takes cognizance thereof – meaning thereby the offence(s) or commission
of offence(s) is taken note of with a view to proceed against the offenders.
At that point of time in my considered opinion it would be important to look
into the role of each and every accused person (charge sheeted) or otherwise
who has been either placed in column no.12 or against whom there may be
material as per the opinion of the Court. Considering the different nature of
roles of all the said persons to my mind there should not be a blanket order
qua each and every accused particularly moreso when there is a judgment
interse the said parties wherein there is a direction passed by Hon’ble High
Court to pass a speaking order. This aspect I had highlighted in the order
dated 13.12.2024. I am quoting the said order as well herein as it
encompasses the submissions made with regard to the cognizance order
being non speaking one:
3. The following preliminary submissions were
advanced by Ld. Sr. Advocate on behalf of revisionist(s) :
i. Sh. Vikas Pahwa, Ld. Sr. Advocate on behalf of Shilpa Gupta
had commenced the arguments and had given a prelude as to
the factual background and given a quick narration of date
and events contending that EMAAR and MGF had formed a
joint venture way back in the year 2005 in terms of
agreement dated 18.02.2005. The said agreement/venture
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28underwent a change whereafter a supplementary
documentation was also done.
ii. The said resulted in the management control being with
EMAAR group in a sense that Chairman and CFO would be
of EMAAR whereas the other Directors/office bearers would
be from either of them including the minority shareholder i.e.
MGF. As the relationship further progressed, certain
agreements were entered into for development of two
residential projects namely Palm Hills Project and Imperial
Garden.
iii. They intended to join one Mr. Sanjay Passi for development
of those projects/engage his help. Later on two companies
M/s Nanny Infrastructure Pvt. Ltd. and one M/s Saum Infra
Pvt. Ltd. were engaged/these companies were in fact
introduced in terms of agreement which permit their
introduction. The complainant concern/joint venture then
was well aware of their constitution, working profile etc. – as
evident from the communications by the EMAAR group to
their overseas parents. Thus, it is not that the complainant
company was in any manner unaware about the work profile/
business activities with/of M/s Nanny Infrastructure Pvt. Ltd.
and one M/s Saum Infra Pvt. Ltd. To put it simply those
companies were doing the work with the consent of the joint
venture/the EMAAR group which was evident by the fact
that the accounts of joint venture were also duly audited. The
agreements with the said companies were also part of the
record – in the knowledge of one and all moreso when the
CFO was of EMAAR group.
iv. It is further stated that dispute arose and there was decoupling
of the EMAAR-MGF joint venture. Even at that point of
time it was also agreed upon that there shall be no litigation
with those companies i.e. M/s Nanny Infrastructure Pvt. Ltd.
and M/s Saum Infra Pvt. Ltd. Projects were divided which the
JV was carrying out under EMAAR-MGF. Two projects
namely Imperial Garden and Palm Hill projects went into the
share of EMAAR and in fact these projects were later on also
fully developed/sold. At no point of time there was any
dispute with regard to the role of the said two companies viz
a viz the said project or any allegation of wrong doing.
v. Subsequently the FIR was got registered in terms of order
passed by Ld. CMM U/s 156(3) Cr.PC. Matter was litigated
virtually in every Court thereafter. The matter went till the
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29Hon’ble Apex Court. Charge sheet was filed. In terms of
impugned order dated 16.11.2024 cognizance of the
offence(s) has been taken and accused persons have been
summoned. The said order is being challenged.
vi. Delving on the order dated 16.11.2024 Ld. Sr. Advocate
pointed that there are various infirmities insofar as the said
cognizance and summoning order is concerned and he has
taken detailed grounds in the revision petition against those
aspects.
Outlining the same he contends that in pith and
substance it is a non speaking order. It merely reproduces
what the Investigating Officer has stated. It is not in real
sense taking cognizance which is a judicial function and has
two limbs – taking cognizance of the offence and thereafter
scanning the charge sheet and proceeding against the
offenders/accused persons.
vii. He has read over the impugned order and contends that the
pages no.1 to 4 only merely reproduces what has been stated
by the IO and thereafter in one line, generic omnibus
summoning order has been passed – which is at page 5 of the
impugned order. Mr. Pahwa, Ld. Sr. Advocate further
submits that the order does not even barely record any date or
event – the transactions were pertaining to the year 2005 and
the FIR order was passed in the year 2021 and finally FIR
was registered in the year 2022. In one line order bereft of
any bare reasoning or discussion all the accused persons have
been summoned irrespective of the fact that a serious offence
U/s 409 IPC was sought to be attracted.
viii. Ld. Sr. Advocate contended that since the
offences complained of entailed serious punishment, it was
incumbent to take note of the charge sheet/ the material relied
by the IO qua each accused person even if not in detail but at
least there ought to be discussion qua each accused persons at
least minimally. The same would have at least brought to the
fore the dimensions of the offence or the expanse of the
charge sheet would have been visible. In fact the order being
completely non speaking glosses all such facts.
ix. Ld. Sr. Advocate submits that this order has gravely
prejudiced the accused person/revisionist. He further
submits that it is not the case of summoning of one or two
isolated persons but there are large number of accused
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30persons, who have been sought to be summoned by way of
the present humongous order. He submits that Shilpa Gupta,
the revisionist was not responsible for the management and
in fact she remained a non-executive director for majority of
the period. As such she could not have been summoned. In
support whereof he has relied upon the provisions of the
Companies Act. He further submits that in the case of Anil
Bhalla v/s State which was also a similar matter pertaining to
EMAAR-MGF as he was one of the director of the joint
venture, the summoning order was set aside being non
speaking and it neither described the role of any of the
individual accused or identified the material, upon which
they were sought to be summoned [order dated 06.05.2022 in
Crl.M.Case No.2071/2022 passed by the Hon’ble High
Court].
x. Summing up his preliminary submissions he contends that
the matter requires to be argued at length considering that the
liberty of the revisionist is under peril, factual matrix of the
case, which is primarily based on documentary evidence, on
a standalone basis if considered would probablize otherwise
than the summoning of the revisionist herein. Delving
further he states that the revisionist Shilpa Gupta could not
have been summoned at the first instance or even if she is
summoned, the summoning order is woefully short in
informing the revisionist/accused persons as to the grounds
upon which she is being called by the Court. He submits that
the summoning order needs to be revisited and he wishes to
address detailed submissions on the aforesaid points as
elaborated/adumbrated in the revision petition. He submits
that the proceedings before the Ld. Trial Court scheduled for
early hearing on 16.12.2024 be stayed and he be permitted to
address arguments at length.
4. Sh. Tanvir Ahmed Mir, Ld. Sr. Advocate
appearing on behalf of revisionist Rakshit Jain contends that
apart from whatever has been contended by the Ld. Sr.
Advocate appearing on behalf of revisionist Shilpa Gupta
additionally he submits that the role of Rakshit Jain is not
there in the entire transaction. He has been roped in
unnecessarily. Rakshit Jain has been summoned as an
accused person despite the fact that earlier disputes were
resolved amicably and there was a condition that neither of
the parties will litigate. He submits that M/s Nanny
Infrastructure Pvt. Ltd. and M/s Saum Infra Pvt. Ltd., both
have been roped in unnecessarily.
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4.1 Sh. Tanvir Ahmed Mir further contends that the
basic reasoning for the offence is that those were related
companies and that relation was not disclosed by MGF group
however, first of all the said fact was well known to EMAAR
and secondly and more importantly it only gives right to take
action under the Companies Act and not under the Criminal
law. He submits that insofar as cognizance/summoning order
is concerned, the necessity to elaborate the material
whereupon the summoning order is based is imperative as it
has serious repercussions as it affects the right of the
summoned person whose character is changed to that of an
accused. He submits that summoning order is non speaking
and even contrary to the record/investigation conducted by
the IO. For that it is imperative that the summoning order
should be set aside. He submits that he wishes to address
arguments at length on this score.
5. Repelling the aforesaid contentions Mr. Madhav
Khurana, Ld. Sr. Advocate who appeared without notice
contended that the matter has already travelled till the
Hon’ble Apex Court. Registration of FIR by exercising the
power U/s 156(3) Cr.PC was not faulted. Similar arguments
which are now being agitated were raked up before the Ld.
ASJ. Each and every contention has been dealt in by the Ld.
ASJ while dismissing the revision petition. The accused
persons are trying to put a spoke in the wheel by filing the
present revision petition. They are not remediless. They can
contend once they appear before the Ld. Trial Court. He
further contends that in the case titled as State of Gujrat v/s
Afroz Mohd Hassan Fatta reported in 2019 SCC online 172
all such contentions as sought to be agitated herein were
repelled. In support whereof he has read over para no.14,15
and 18 of the said case to underscore his contention that the
summoning order is valid, justified and needs no
modification/clarification. It is merely calling upon the
accused to face trial or to call the accused persons basing
upon the conclusion reached by the IO as evident in the
police report which would obviously be supplied to the
summoned accused persons and they would be having an
opportunity to reply/to submit qua the same at the opportune
time. He contends that the revision petitions are meritless.
6. I have broadly noted the submissions made at bar.
In fact the matter was argued for the entire post lunch session.
In my considered opinion some of the points raised by Ld. Sr.
Advocate on behalf of revisionist(s) require to be further
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deliberated upon. They cannot be outrightly or immediately
adjudicated upon. They warrant due deliberation. The next
date of hearing before Ld. Trial Court is 16.12.2024.
7. I have also gone through the impugned order
which is at page 190 onwards of the paper book. Ld. Trial
Court has noted the submissions probably that of the
complainant’s counsel and thereafter proceeded to pass the
order. The operative portion is at page no.194. Same reads as
here under :
“Considering the report filed, complaint made, statement of
the witnesses and documents annexed, this Court find
sufficient material to take cognizance of the offences
mentioned in the police report. Further there is sufficient
material to proceed against the accused persons in the present
matter. I take cognizance of the offence U/s 409/420/120 B
IPC. Accused persons put in column No.11 be summoned for
the NDOH.”
8.In my considered opinion the validity of the order requires
to be tested on the anvil of the submissions made by Ld. Sr.
Advocates on behalf of either side – particularly in reference
to the case laws relied upon by either side coupled with the
fact that the order does not individually state the role of the
individual accused persons/the offence for which they have
been summoned [Reliance is made on the judgment of Anil
Bhalla (supra)]. As such let this revision petition be listed for
final disposal on 16.01.2025.
11. In view of the law laid down in Anil Bhalla‘s case there cannot be
a non-speaking order at the time of cognizance. As such to my mind there
could not have been a cognizance/summoning order as done by the Ld. CJM
moreso without taking into account the pending application U/s 156(3)
Cr.PC i.e. taking into account/meeting the observations made in the order
dated 08.08.2024 passed by the Ld. CJM.
12. Having said so in my considered opinion since the summoning
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order dated 16.11.2024 suffers from the aforesaid infirmities or is otherwise
requires to be revisited by the Ld. CJM, itself the second line of arguments
which predicated that the cognizance/summoning can be challenged or at
this stage this Court should appreciate the material relied upon by the
Investigating Agency to conclude as to the existence of the penal offences or
otherwise as to the nature of the offence being civil in nature or otherwise
take into account the other facts/litigation interse, same to my mind is not
required to be dealt with by this Court.
13. Considering the fact that the said arguments/observations made
would otherwise also burden this order apart thereof may influence the Ld.
Trial Court, I am eschewing discussion on arguments encompassed in part
(II) of the arguments.
14. The net result insofar as the five revision petitions [ Rakshit Jain
v/s State, Arun Mitter v/s State, Rajeev Gupta v/s State,\M/s MGF
Development ltd. v/s State and Rajender Singh v/s State] are concerned the
impugned order dated 16.11.2024 is set aside with directions to the Ld. CJM
as here under :
To first deal with the pending application U/s 156(3) Cr.PC/ the
observations made in the order dated 08.08.2024 passed by the Ld.
CJM. Pass a speaking order on the same in accordance with law.
Thereafter, separately deal with the further aspect(s) including the
aspect of cognizance, if need arises in accordance with law.
15. There is another aspect which had come up for consideration on
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the preceding date with regard to the fact that there is a judicial verdict which
has been obtained insofar as the present transaction is concerned before the
competent Court at UAE. Two revisionists i.e. Shravan Gupta and Shilpa
Gupta both have filed an application submitting that the said judicial verdict
was not brought to the knowledge of any Court in India nor it was brought to
the knowledge of the IO/Investigating Agency and now they are being made
to face trial in the case in hand in which already a judicial verdict has been
reached against them. In criminal referral order/case no.245/2021, Capital
Criminal Court report no.360/2021 Shravan Rajeev Gupta has been
sentenced to 10 years in prison for the charges brought against him followed
by deportation from the country upon completion of the sentence. The
accused Shilpa Gupta is also sentenced for 10 years in prison. The said order
was passed by Abu Dhabi Federal Court of first instance. In this regard
preliminary submissions were heard advanced by either side. The judgment
passed by Hon’ble Bombay High Court in the case titled as Prabodh K.
Mehta v/s Charuben K.Mehta reported in 2018 SCC Online Bombay 302
was relied upon. Hon’ble Justice B.R.Gavai had delivered the said judgment
and it has been observed as here under :
40. Insofar as Judgment of Division Bench of this Court in the case
of Avinashkumar Bhasin (cited supra) is concerned, we find that
the question, as to whether the judgment and order of conviction
can be taken notice in India for any other purposes directly fell for
consideration. As such, we do not see any apparent conflict in the
two views. However, in the light of discussion hereinabove, we
find that the view taken by the Division Bench of this Court in
Avinashkumar Bhasin (cited supra) lays down the correct position
of law.
41. We therefore answer the first question viz question No. (1)(a) in
the affirmative.
42.We now propose to consider the second question i.e. question
No. (1)(b). We are of the considered view that, though the judgment
and order of conviction of a foreign Court for the offence
committed in India can be noticed/looked into and recognized by
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35judicial and quasi judicial authorities in India, while exercising
their judicial and quasi judicial powers, it cannot be said that the
same will be ipso facto binding on such Courts and authorities. If
we hold that such a judgment of a foreign Court for an offence
committed in that country, is binding on the Courts and authorities
in India while exercising their judicial and quasi judicial powers, it
will amount to directly or indirectly enforcing the judgment of the
foreign Court. What is the effect of such order of conviction, would
depend upon variety of factors such as, nature of the proceedings,
purpose for which the said order of conviction needs to be taken
into consideration, nature of conviction and effect thereof on the
proceedings, nature of consequences of the ultimate decision to be
taken in the said proceedings, are some of the factors which will
have to be taken into consideration while deciding as to how much
and what weightage has to be given to such judgment and order of
conviction. We are of the FA-922-13.sxw considered view that, no
hard and fast rule can be laid for that purpose. The Courts and
authorities, while exercising their judicial and quasi judicial
powers will have to take a call on the facts and circumstances of
each case and take a decision as to what is the effect of such
judgment and order of conviction. The question No.(1)(b) is
answered accordingly.
16. To my mind the said issue requires to be heard at length as it is a
question of law that in the criminal jurisdiction of another country on
identical facts the judgment has been rendered. As such the revision
petitions of Shravan Gupta v/s State and Shilpa Gupta v/s State are
segregated and notices be issued to the complainant Ld. APP for the State
and the Investigating Agency/ IO to file a reply to the application moved
therein. Till the next date of hearing the stay order qua the said accused
persons i.e. Shravan Gupta and Shilpa Gupta shall continue/proceedings
emanating from the present FIR shall remain stayed.
17. With the aforesaid observation the petitions i.e. Rakshit Jain v/s
State, Arun Mitter v/s State, Rajeev Gupta v/s State, M/s MGF Development
ltd. v/s State and Rajender Singh v/s State a re disposed of and the Ld. Trial
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Court can commence/continue the proceedings from/after the stage of the
order dated 08.08.2024 passed by the Ld. CJM with respect to the
monitoring application and to comply with the directions as contained in
paragraph no. 14 of the present order.
18. The revision petitions of Shravan Gupta v/s State and Shilpa
Gupta v/s State are segregated and be listed for 04.07.2025. Viz a viz five
revision petitions are disposed of to the extent mentioned herein above.
TCR be sent back for 17.05.2025.
Dictated and Pronounced in open Court
on 05.05.2025 (Sumit Dass)
Additional Sessions Judge -05
New Delhi District, Patiala House Courts
New Delhi.
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