Crl.Misc. No.M-2746 of 2010 v. Central Bureau of Investigation

The present FIR was registered against the petitioner as well as M/s E-City Entertainment (India) Pvt. Limited. The present petition has been filed for quashing of FIR registered against the present petitioner. Mr.Vinod Ghai, learned counsel for the petitioner submits that the petitioner has falsely been implicated and no offence has been made out against the present petitioner and he is not involved in any manner in the alleged offence of conspiracy as alleged by the respondent-CBI. The main allegations against the petitioner are that form 'B' dated 19.6.2006 was issued dishonestly by SDO Building, Chandigarh in conspiracy with the petitioner and his co-accused. The petitioner and M/s E-City Entertainment (India) Pvt. Limited were in conspiracy with Shri T.P.Singh, Brij Mohan and Sandeep Sharma and had cheated the Union Territory Chandigarh. Mr.Ghai further submits that as per lease deed agreement dated

26.5.2000, the said site was given to M/s E-City Entertainment (India) Pvt. Limited for setting up of a new multiplex theatre for a period of 25 years on a fixed monthly rent of Rs.5.00 lacs and as per terms and conditions of the said lease deed, M/s E-City Entertainment (India) Pvt. Limited was solely responsible to obtain all necessary approval/sanction from the concerned authorities as per rules and regulations relating to building by- laws prescribed by Chandigarh Administration or any other competent authorities to demolish, construct, build, operate and run the Entertainment Crl.Misc. No.M-2746 of 2010 [4] Centers including the Multiplex and since old existing structure was removed and new building was to be constructed after obtaining requisite licences, approvals and sanction by the company owner. The entire demolition, architectural, planning, construction, designing, drawings, approvals, sanctions, operations, management, payment conversion/composition fees and running of the Multiplex was sole responsibility of the E-City Entertainment (India Pvt. Limited. Mr.Ghai further submits that the allegation of CBI in Clause

16.32 that form 'B' dated 19.6.2006 was issued dishonestly by SDO Building in conspiracy with the petitioner and his co-accused is totally wrong as the petitioner was nothing to do with the alleged form 'B'. Form 'B' is the prescribed form of the Chandigarh Administration for release of sanctioned building plans and in the present case, the building plans, drawings including the revised drawings/ plans were prepared by the lessee of the petitioner and the present petitioner has only signed the documents being the original allottee of the site. He further submits that as per terms and conditions of lease deed agreement, only the lessee is responsible to the activities/ lapses or violation of any rules or procedure of the site. Moreover, two civil suits filed by the petitioner are pending against the lessee before the Civil Judge (Senior Division),Chandigarh. The petitioner had nothing to do with the charges and form 'B' and the same was to be paid only by the lessee to the U.T. Chandigarh and the petitioner being Director of M/s DBPL, is only entitled to a fixed rent of Rs. 5.00 lacs per month. Mr. Ghai further submits that as per Section 15 of Capital of Punjab (Development and Regulation) Act, 1952, no offence is made out Crl.Misc. No.M-2746 of 2010 [5] under Section 420 /120-B IPC as the penalty can be imposed in case there is any breach of rules or there is any misuse and the dispute is of civil nature. As per Section 18 of Capital of Punjab (Development and Regulation) Act, 1952, the procedure for prosecution is as under: “ No Court shall take cognizance of any offence punishable under this Act or any rule made thereunder except on the complaint of, or upon information given by, the Chief Administrator or any other person authorized by him in this behalf.” Section 4 Cr.P.C. lays down that where special statute provides a special procedure, then provisions of special act shall prevail. Mr.Ghai also relied upon the judgment of the Hon'ble Supreme Court in State of Bihar v. Murad Ali Khan and others AIR 1989 SC 1 and Narcotics Control Bureau v. Kishan Lal and others AIR 1991 SC 558 (para 6) in support of his contention. Mr.Anmol Rattan Sidhu, learned Senior Standing Counsel for the CBI has fairly admitted that all the documents were signed by the present petitioner being the original owner of the site in dispute and M/s E-City Entertainment (India) Pvt. Limited is responsible for the violations, lapses and issuing forms 'J' and 'K'. The petitioner has signed the documents being owner. On the basis of investigation conducted by CBI, the present FIR was registered and the present petitioner as well as the co-accused i.e. M/s E-City Entertainment (India) Pvt. Limited were held responsible for the said commission and omission. Mr.Sidhu also submits that although the construction and other formalities have been completed by Crl.Misc. No.M-2746 of 2010 [6] the lessee and they have remained in constant touch with Chandigarh Administration. I have heard the arguments of learned counsel for the parties and have gone through the contents of the FIR and the reply filed by the CBI. As per terms and conditions of the lease deed agreement Annexure P-3, the petitioner cannot be held responsible or liable as it is clear from the said lease deed as all the responsibilities and liabilities are of M/s E -City Entertainment (India) Pvt. Limited. It has clearly been mentioned that the petitioner is to receive a fixed amount of Rs.5.00 lacs per month as lease rent money with provision of 5% increase in the lease rent money after expiry of five years, and the petitioner is not entitled to any part of profit. As per agreement, everything regarding demolishing the original building of Dhillon Theatre, erecting of multiplex (Fun Republic in its place) designing, architectural, planning, drawings, approvals, construction, sanction , payment of all fees, conversion charges, operations, management etc. was to be done by the lessee. Paragraphs 2 and 3 of the lease deed agreement are reproduced as under: “ And whereas the lessees approached the lessors and have shown interest in taking on lease the said property as described in the First Schedule hereunder written, together with all building and structures erected and constructed thereon described in the Second Schedule hereunder written for constructing an entertainment center including a multiplex screen thereon after pulling Crl.Misc. No.M-2746 of 2010 [7] down, dismantling, demolishing, and removing internal buildings and structures without effecting the outer facade, and subject to rules and regulation relating to building bye-laws prescribed by the Chandigarh Administration and / or any other competent authorities. Renovating the existing buildings as may be required for the purpose and installing the latest plant, machinery and equipment as are required for setting up the entertainment center and multiplex screen, including restaurants, shopping mall, health club etc. as may be permitted by the Chandigarh Administration and/or any other authority including the right to book advertisement for publicity of the entertainment center and multiplex screen on the terms and conditions and covenants herein after contained.” It appears from the documents available on the file that Chandigarh Administration/Municipal Corporation Chandigarh was having regular correspondence with the lessee and vice-versa. The entire drawings, documentation and plans of the building including From 'J' and Form 'K' of Punjab Capital (Development and Regulation) Building Rules, 1952 of Chandigarh Administration in the Union Territory of Chandigarh are required to be submitted and signed by the original allottee/owner of that building even if the said building has been leased out and due to that requirement, only the petitioner had to sign all those documents. All the conversion/compounding fees were deposited by the lessee at their ends Crl.Misc. No.M-2746 of 2010 [8] and they were solely responsible as per lease deed agreement. Even the replies during correspondence were also addressed in the name of lessee. It was merely a formality that the documents are to be signed by the owner of the building. The argument of learned counsel for the petitioner that merely by signing the documents being original allottee does not make the petitioner liable for the activities done by the lessee, is justified keeping in view the terms and conditions of the lease deed agreement. The intention of the present petitioner is also clear from the Notices Annexures P-8 and P-9 issued by the petitioner to the lessee to remove /rectify all the violations but the same were not complied with which later-on led to termination of lease deed agreement on 24.11.2007. Two suits were filed – one for ejectment and one for permanent injunction. Both the civil suits are pending before the civil Court. Similarly, as per Punjab Capital (Development and Regulation) Building Rules, 1952, certain documents including Form 'J' and Form 'K' are to be signed by the original allottee of the building. The petitioner is not responsible and liable for all claims, suits, damages and expenses arising out of any misuse, violation etc by the lessee. Clauses 11, 12 and 13 are reproduced as under: “ 11. That the lessee will also keep the lessor indemnified against all claims, suits, damages and expenses arising out of the use of the demised premises for the aforesaid purpose or in respect of any act apprehended therefrom or alleged to be occasioned thereby; Crl.Misc. No.M-2746 of 2010 [9]

12.If due to any reason, license suspended/cancelled, it shall be the responsibility of the lessee to get the same restored and the lessee undertakes to indemnify and keep indemnified the lessor against any action arising thereto and

13.The lessee ensures to take all safety measures . Any accident, fire, explosion, or the like, which is attended with loss of human life or serious inquiry to person(s) or property shall be the sole responsibility of the lessee. The lessee shall keep the lessor indemnified against all such liabilities.” Mr.Sidhu has not been able to point out either from the report of the CBI or from any other document as to how the petitioner has connived with SDO in issuing Form 'B'. Form 'B' is the prescribed form which is to be issued by Chandigarh Administration for releasing of the sanctioned building plans. In the present case, the building plans /drawings including the revised drawings /plans were prepared by the lessee through Architect and there is no role of the petitioner in that, except the same was signed in the capacity of owner of the building. Similarly, there is no role of the petitioner in violation of Rule 18 of the said Act. Rule 18 applies to permission to occupy and this permission to occupy can only be issued on form 'F' and not in Form 'B' as mentioned by the Investigating Agency. Form 'F' is issued by the competent authority on an application made by the owner in Form 'D' and on receipt of application in form 'D' with Crl.Misc. No.M-2746 of 2010 [10] attachment, the Estate Officer inspects the building to ascertain the violation, if any, as per Rule 18 A(iii)(b). In the present case, the SDO Building has released the sanctioned revised drawing in form 'B' on

19.6.2006 which was submitted on 29.9.2003 and same was approved by the Plan Approval Committee (PAC) on 8.4.2004 and conveyed on

16.4.2004, 4.4.2005 and again on 11.8.2005. Moreover, there cannot be any violation of Rule 18 as the Occupancy Certificate has not yet been issued. As far as offence of criminal conspiracy of the present petitioner is concerned, the petitioner has nothing to do with the charges of Form 'B' as the same were to be paid by the lessee and all the amounts were paid by the lessee only and even the petitioner has not made payment of any amount. He was to get a fixed rent of Rs.5.00 lacs per month. Moreover, with regard to role of the present petitioner, it has been observed by the Hon'ble Judge while granting anticipatory bail to the petitioner that the petitioner cannot be held liable only on the ground that he had signed the documents. The relevant portion of the order dated

16.4.20009 while granting anticipatory bail to the petitioner, is reproduced as under: “To my mind without anything more it would be far fetched to say, at least at this stage, hat since the accused-applicant signed the applications, he was party to criminal conspiracy. The fact that he had signed the documents has not been denied by him. His plea is that he signed the documents because as per the procedure Crl.Misc. No.M-2746 of 2010 [11] only owner could have signed them. Otherwise, he relies on lease deed as per which the entire responsibility was that of the lessee. If lessee commits acts of commissions and omissions singularly or in conspiracy with public servants, it does not mean, ipso facto, that the owner of the premises is also guilty. Principle of vicarious liability is unknown to criminal jurisprudence.” Section 15 of Capital of Punjab (Development and Regulation) Act, 1952 provides for penalty in case of breach of rules. Section 18 of the Act has given the procedure for prosecution which is reproduced below: “

18. Procedure for prosecution .- No Court shall take cognizance of any offence punishable under this Act or any rule made thereunder except on the complaint of, or upon information given by, the Chief Administrator or any other person authorized by him in this behalf.” Moreover, Section 4 Cr.P.C lays down that where special statutes provides a special procedure, the provisions of special act shall prevail and as such no offence under Section 420 IPC is made out. Apart from the above, Mr.Sidhu also admitted that there is no role of the present petitioner except to sign the documents and all the allegations/lapses or irregularities are against the lessee . Crl.Misc. No.M-2746 of 2010 [12] In catena of decisions, the Hon'ble Apex Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 Cr.P.C. in a routine manner by stating that such powers should be exercised sparingly and not in a routine manner. Although exercise of inherent power under Section 482 Cr.P.C. is not a rule but it is an exception but still if the accused has been harassed unnecessarily and if trial is allowed to linger when prima facie it appears to the Court that the trial would likely to be ended in acquittal, the High Court can invoke its power under Section 482 Cr.P.C. to prevent abuse of process of law or to secure the ends of justice. In State of Haryana and others v. Bhajan Lal and others 1991(1) R.C.R.(Criminal) 383, the Hon'ble Apex Court after recording various decisions of the Supreme Court, enumerated various categories of cases by way of illustration wherein the inherent power under Section 482 Cr.P.C. should be exercised by the High Court, observed as under: “1. Where the allegations made in the first information report of the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. Crl.Misc. No.M-2746 of 2010 [13]

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act ( under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and /or where the proceeding is malicious instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Crl.Misc. No.M-2746 of 2010 [14] In State of Andhra Pradesh v. Bajjoori Kanthaiah and another 2009 AIR (SC) 671, the Hon'ble Supreme Court has held that powers possessed by High Court under Section 482 Cr.P.C. are very wide and require great caution in its exercise. The court must be careful to see hat its decision in exercise of this power is based on sound principles and such power should be exercised with great care and caution and no hard and fast rule can be laid down in regard to cases in which the High Court can exercise its extra- ordinary jurisdiction of quashing the proceedings at any stage. In The Janta Dal etc. v. H.S.Chowdhary and others etc AIR 1993 SC 892, the Hon'ble Apex Court has held that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 Cr.P.C. It has further been held that it is not necessary that there should be meticulous analysis of the case before the trial Court to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears on consideration of the allegations in the light of statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint /FIR is mala-fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. If the complaint is lodged with mala fides of the informant and the allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. Keeping in view the principles of law as explained above and Crl.Misc. No.M-2746 of 2010 [15] the facts and circumstances of the present case, the present petitioner is not involved in the allegations as there was an agreement with the other co- accused who is responsible for the violations committed during construction of the building and in applying or fulfilling certain forms as required by the Administration on various occasions. Moreover, civil litigation with regard to those violations are still pending between the parties and for that also the present petitioner cannot be held liable because he is the owner of the land in dispute and construction work is being done by M/s E-City Entertainment (India) Pvt. Limited. For the reasons recorded above, the present petition is allowed and FIR No. RCCH02007A0003 dated 20.2.2007 registered at Police Station CBI, ACB, Chandigarh under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 and Section 420 read with Section 120-B IPC and all subsequent proceedings arising therefrom qua to present petitioner are quashed. (DAYA CHAUDHARY) JUDGE

31.3.2010 raghav