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Jyoti Sawhney vs State Govt Of Nct Of Delhi & Ors on 13 February, 2020

$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 07.01.2020
Pronounced on: 13.02.2020

+ CRL.REV.P. 474/2017
JYOTI SAWHNEY ….. Petitioner
Through Mr.Maninder Singh, Adv. with
Ms.Aekta Vats, Mr.Vikram Kalra,
Mr.Sankalp Kolhi, Mr.Aahil Arora
Mr.Dinhar Takiar, Advs.

versus

STATE GOVT OF NCT OF DELHI ORS ….. Respondents
Through Mr. Panna Lal Sharma, APP for State.
Mrs.Rebeeca M. John, Sr. Adv. with
Mr.B.Badrinath Ms.Megha Bahl,
Advs. for R-2.
W/SI Mukesh Kumari PS Ambedkar
Nagar.

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT

JUDGMENT

1. The present petition has been preferred under sections 397 and 401

read with section 482 Code of Criminal Procedure (hereinafter referred to as

„Cr.P.C.‟) against the order on charge dated 14.02.2017 and the framing of

charge dated 22.02.2017 passed by learned ASJ (FTC), Patiala House

Crl.Rev.P.474/2017 Page 1 of 17
Courts, New Delhi, in SC No.9416/2016, whereby respondent no.3 has been

discharged of the offence of cheating under section 420 of Indian Penal

Code (hereinafter referred to as ‘IPC‟) in spite of their being glaring prima

facie evidence to charge him for the offence of cheating revisionist.

2. The brief facts of the case are that on 21.11.1992, marriage between

petitioner and respondent no.3 was solemnized at Ashok Vihar, New Delhi.

They were blessed with a son on 31.07.1995 and thereafter blessed with

daughter on 22.12.1998.

3. As stated in the present petition that marriage between the petitioner

and respondent no.3 was rocky and there was extreme discord and

disharmony, due to which petitioner and respondent no.3 decided to dissolve

their marriage. Consequently, an Agreement dated 13.02.2012 was executed

between them whereby petitioner was promised, induced, allured and

enticed by respondent no.3, to believe that respondent no.3 would be paying

her a sum of ₹9,00,00,000/- (Rupees Nine Crores Only), over and above

what she would receive in Divorce Proceedings. Subsequently, on the same

date i.e. on 13.02.2012, a Petition under section 13-B(1) of the Hindu

Marriage Act, 1955, between the petitioner respondent no.3, was signed,

their Affidavits attested and the same was filed before the Filing Section and

Crl.Rev.P.474/2017 Page 2 of 17
allowed vide order dated 15.02.2012 whereby it has been observed by the

learned Principal Judge, Family court, Saket (South), New Delhi as under:

“It has been mutually agreed between petitioners that
petitioner No. 2 shall pay a total amount of Rs.1 crore to
petitioner No. 1 towards the full and final settlement qua
her past, present and future maintenance, entire stridhan
and permanent alimony, out of which, a sum of Rs.
5,00,000/- vide Demand Draft bearing No. 986073, dated
29.01.2012, in favour of petitioner No. 1 in the Court.
The balance amount of Rs. 95,00,000/- has been agreed
to be paid by petitioner No. 2 to petitioner No. 1 at the
time of passing of order/decree.”

4. It is not in dispute that agreement dated 13.02.2012 was notarized by

the parties on 03.03.2012. Thereafter on 31.08.2012, the petitioner and

respondent no.3 entered into a Settlement Agreement, whereby, it was

agreed that for the purpose of obtaining the Divorce Decree, Respondent

No.3 would pay ₹5,00,00,000/- instead of ₹1,00,00,000/- as had been agreed

during the filing of the Petition under section 13-B(1) of the Hindu Marriage

Act, 1955.

5. Relevant portion of the same is reproduced as under:

“AND WHEREAS the parties above named had filed a
petition under Section 13B(1) of the Hindu Marriage Act,
1955 bearing HMA No. 134 of 2012 before the Court of
Shri. K.S. Mohi, Family Court, Saket Court Complex,
New Delhi. That in terms of the mutual consent petition

Crl.Rev.P.474/2017 Page 3 of 17
under Section 13B(1) of the Act it was clearly averred
that both the parties have been living separately since
January 2010 due to differences in their temperamental
attitude and have not resumed cohabitation thereafter
and there is no possibility of living together as husband
and wife and it was agreed that the Second Party .i.e., the
husband shall pay a sum of Rs.1,00,00,000/- (Rupees one
crore only) towards full and final settlement of all the
past, present and future maintenance, stridhan and
permanent alimony qua the First Party in respect of
which Rs. 5,00,000/- (Rupees Five Lakhs only) was paid
vide Demand Draft No. 986073 dated 29.1.2012 in favour
of the First Party and the balance amount of
Rs.95,00,000/- (Rupees Ninety Five lakhs only) was liable
to be paid to the First Party at the time of passing of the
order/decree.”

“……..”

“1. That it has been decided between the parties above
named that in total a sum of Rs. 5.00 crores (Rupees Five
Crores only) shall be paid to the First Party towards all
her claims in respect of stridhan, maintenance,
permanent alimony, right of residence, etc., by the Second
Party. That out of the sum of Rs. 5.00 crores (Rupees Five
Crores) the Second Party shall make an FDR in the sum
of Rs.2.5 crore (Rupees Two Crores Fifty Lacs only) in
the name of the minor daughter Sarah Sawhney under the
guardianship of Ms. Jyoti Sawhney.”

6. Mr. Maninder Singh, learned counsel for the petitioner submits that in

the Settlement Agreement dated 31.08.2012, agreement dated 13.02.2012

does not even find mention and in fact, the Agreement dated 13.02.2012 did

not even see the light of day in the entire Divorce Proceedings before the Ld.

Family Court. Even otherwise, it is suffice to say that the Agreement dated

Crl.Rev.P.474/2017 Page 4 of 17
13.02.2012 is independent of Decretal Amount in the Divorce Proceedings

and has not been superseded ever. Ld. Family Court was pleased to record

the statements of petitioner as well as Respondent No.3 in Petition U/S 13-

B(2) of the Hindu Marriage Act, 1955. Vide order dated 04.09.2012, learned

Family Court was pleased to allow the petition by dissolving the marriage

between them.

7. It is further submitted that on 09.04.2014, FIR No.305/2014 was

registered at Police Station Vasant Vihar, New Delhi on the complaint of

petitioner against respondent no.3 for commission of offence punishable

under section 376/377/420 IPC. However, Trial Court while charging

respondent no.3 for the offence under section 376(2) (n) of IPC erroneously

discharged him for the commission of offences under section 420 IPC.

8. Learned counsel submits that to appreciate offence punishable under

section 420 IPC, it is to be established that offence of cheating has been

committed and ingredients of Section 415 of the IPC which defines the

offence of cheating are fulfilled. There should be a dishonest or fraudulent

intention at the time of making promise for the purpose of causing

inducement to deliver any property to any person.

Crl.Rev.P.474/2017 Page 5 of 17

9. To strengthen his argument, learned counsel for the petitioner has

relied upon the case of Hirdaya Ranjan Prasad Verma Ors. Vs. State of

Bihar Anr.: (2000) 4 SCC 165, therein, the Hon’ble Supreme Court after

examining definition of “cheating” opined that there are two separate class

of acts which persons deceived may be induced to do. In the first place, he

may be induced fraudulently or dishonestly to deliver any property to any

person. Second class of acts set forth in the section is doing or omitting to do

anything which the person deceived would not do or omit to do if he were

not so deceived. In the first class of cases, the inducement may be fraudulent

or dishonest. Whereas, in the second class of acts, the inducement must be

intentional but not fraudulent or dishonest. A guilty intention is an essential

ingredient of offence of cheating. In order to secure conviction of a person

for the offence of cheating, “mens rea” on the part of that person, must be

established.

10. He further relied upon the case of Kailash Nath vs. State: 1969 (5)

DLT 426, wherein, this Court while refusing to discharge the petitioner

therein of the offence under section 420 IPC has observed as under:

“10. This takes me to the charge under section 420 Indian
Penal Code. The contention of the learned counsel for the
petitioner is that there is no evidence to support the

Crl.Rev.P.474/2017 Page 6 of 17
complainants’ allegations about any fraudulent mis-
representation having been made by the petitioner. I am
however not impressed by this argument at this stage. It
is no doubt true that ordinarily when a person deposits
money with another for the purpose of earning interest
thereon the ordinary relation of a debtor and a creditor is
created between the parties. From that, however, it does
not necessarily follow that in every case where money is
deposited by one person with another the question is one
of civil liability only. The essential ingredient of an
offence under section 420 Indian Penal Code is that there
should be ab initio dishonest intention on the part of the
accused to knock out money from the complainant by
means of fraudulent representations. This intention can
be proved not only by the oral evidence of witnesses but
also by surrounding circumstances including
circumstances which precede and follow the transaction
whereby the complainant has been made to part with his
money. It is not possible to say at this stage, that the
charge against the petitioner for an offence under section
420 I.P.C. is entirely groundless. It is however quite
possible that at the trial the petitioner may be able to
show by cross-examination of witnesses and or by defense
evidence that there was no intention on his part to cheat
the complainants and that the transaction between the
parties was one of civil nature. The framing of charge
against the petitioner has no other significance except
that there is a prima facie case which requires to be tried.
It is no indication of guilt of the person charged with the
offence.”

11. In view of the settled law, learned counsel for petitioner submits that

Trial Court lost sight of the fact that at stage of charge, the court has to

arrive at only a prima facie finding that a charge could be sustained with the

Crl.Rev.P.474/2017 Page 7 of 17
materials on record and not rely on the grounds relied upon by accused,

which are not gospel truth and accused requires evidence to prove the same

which can only be adduced at the stage of trial.

12. He further submitted that holding of a mini trial at the time of framing

of charge has been deprecated by the Hon’ble Apex Court in Indu Jain vs.

State of M.P.: (2008) 15 SCC 341, whereby it was held in Para 39 that: –

“As observed in Kewal Krishan case, at the stage of
framing of a charge, the court is not required to go into
the details of investigation but to only arrive at a prima
facie finding on the materials made available as to
whether a charge could be sustained as recommended in
the charge-sheet. The same view has been reiterated in
Debendra Padhi case and in Bharat Parikh v. CBI
wherein the holding of a mini trial at the time of framing
of charge has been deprecated.”

13. Learned counsel submits that in view of the facts and legal position as

cited above, present petition deserves to be allowed.

14. On the other hand, Ms. Rebeeca John learned senior counsel

appearing on behalf of respondent no.3 submits that FIR in the present case

came to be registered on 08.04.2014 for an incident which purportedly took

place on 12.08.2013 i.e. after a delay of 240 days. The entire substance of

accusation is based on the allegation that having entered into a settlement

Crl.Rev.P.474/2017 Page 8 of 17
dated 13.02.2012 and promising to pay a sum of ₹9 crores towards

permanent alimony, the accused/respondent no.3 induced complainant to

execute a settlement dated 31.08.2012 and obtained divorce by making a

payment of ₹5 crores (₹2.5 crores in favour of their daughter and ₹2.5 crores

in favour of complainant). It has been alleged that after obtaining divorce on

04.09.2012, respondent no.3 did not pay any money to the petitioner in

terms of the agreement dated 13.02.2012 and thereby, cheated the

complainant. It has further been alleged that despite verbally demanding for

money payable under agreement dated 13.02.2012, respondent no.3 refused

to make any payment. Further alleged that in order to avoid making any

payment to the petitioner, respondent no.3 induced her with a false promise

of marriage (re-marriage) stating that up on marriage, the question of

payment of such amounts would not arise. It has been further alleged that

by making false promise of marriage, respondent no.3 indulged in a physical

relation with the complainant on 12.08.2013.

15. Ld. senior counsel submitted that petitioner and respondent no.3 got

married on 21.11.1992 and divorced on 04.09.2012. Petitioner is an

educated lady (Graduate in English Hons.) hailing from an affluent family.

She has travelled across the world and is well known in social circles of

Crl.Rev.P.474/2017 Page 9 of 17
Delhi. She operates her own business and is capable of understanding the

consequences of her acts. Petitioner voluntarily entered into the agreement

31.08.2012 and obtained divorce on the basis of the said agreement. The

statement of petitioner, on oath, was also recorded by the Ld. Family Court

to the effect that she shall abide by the terms and conditions of agreement

dated 31.08.2012. Having novated agreement dated 13.02.2012 with the

agreement dated 31.08.2012, earlier agreement dated 13.02.2012 was

rendered unenforceable. Petitioner has not initiated any civil suit to seek

declaration regarding the subsistence of the agreement dated 13.02.2012 or

enforcement of her right to receive money under the said agreement.

16. Learned senior counsel has relied upon section 62 of the Indian

Contract Act, 1872 which reads as under:

“62. Effect of novation, rescission, and alteration of
contract:

If the parties to a contract agree to substitute a new
contract for it, or to rescind or alter it, the original
contract need not be performed..”

17. She submits that petitioner has failed to place any material on record

to show any communication between the petitioner and respondent no.3

between 13.02.2012 and 31.08.2012 i.e. after respondent no3 purportedly

Crl.Rev.P.474/2017 Page 10 of 17
agreed to pay ₹9 crores to petitioner, till execution of the second agreement

(31.08.2012) seeking additional payment of ₹5 crores as per the agreement

dated 13.02.2012. Furthermore, even after divorce on 04.09.2012, petitioner

has not placed any document / communication on record to show that

petitioner ever demanded payment of money, due to her, under agreement

dated 13.02.2012. Moreover, petitioner has failed to place any material on

record to show that respondent no.3 had agreed to purchase a house for her

in addition to giving alimony. Petitioner has not cited any witness to prove

the said fact. To the contrary, in Column 2 of the agreement dated

31.08.2012, petitioner has agreed to purchase a residential house for herself,

out of ₹2.45 crores paid by the respondent no.3 as alimony. Consequently,

agreeing to all the conditions of agreement dated 31.08.2012, petitioner has

falsely alleged fraud only to extort money from respondent no.3.

18. Ld. counsel further submitted that communication between petitioner

and respondent no.3 were initiated by petitioner only in June, 2013 (i.e. after

about 10 months of divorce), when petitioner lodged an FIR against one

Sumit Walia (FIR 280/2013 PS Vasant Vihar u/s 376/406/506 IPC) after

having lost all her money to him. Case of petitioner is that she contacted

respondent no.3 only to seek financial assistance because of having lost all

Crl.Rev.P.474/2017 Page 11 of 17
her money to Sumit Walia.

19. She also submitted that petitioner was initially defending Sumit Walia

in FIR 294/12 with PS Vasant Vihar, New Delhi, under section 384/506/509

IPC and was in touch with various police officials and lawyers. However, no

complaint or demand was made vis-a-vis money purportedly payable under

the agreement dated 13.02.2012. The said agreement appears to have been

attested only in December 2012 and not in March 2012.

20. While concluding her arguments, learned senior counsel for the

respondent no.3 submits that petitioner preferred civil suit bearing no.

04/2014 before the Ld. Family Courts, New Delhi seeking declaration of the

decree dated 04.09.2012 as null and void. Upon service of summons in said

suit, respondent no.3 preferred a contempt case bearing Cont. Cas. No.

315/2015 before this court, seeking initiation of contempt proceedings

against petitioner for violation of terms of settlement dated 31.08.2012 and

undertaking dated 01.09.2012. This Court was pleased to record undertaking

of the petitioner that she would withdraw said civil suit and disposed of the

abovementioned petition. On 12.10.2015, statement of petitioner was

recorded by the Ld. Court and on 04.11.2015, said suit was dismissed as

withdrawn. Hence terms of settlement dated 31.08.2012 is binding on the

Crl.Rev.P.474/2017 Page 12 of 17
petitioner. Thus, present petition deserves to be dismissed.

21. It is not in dispute that allegations regarding cheating are that during

divorce proceedings between petitioner and respondent no.3, said

respondent induced her to enter into an agreement of ₹9 crores separately,

though there was settlement for total amount of ₹14 crores and after divorce,

he had also promised to buy a house for petitioner and that he will look after

her daughter and provide all amenities as per the status enjoyed by them. At

the time of first motion, respondent no.3 got the petitioner’s signature for the

settlement of Rs.1 Crore but in fact paid Rs. 5 crores and the documents

were obtained by misrepresenting the petitioner that it was format of the

court.

22. Case of petitioner is that at the time of second motion, the respondent

no.3 stated that Rs.2.5 crore would be given to their daughter in form of FDs

and Rs.2.45 crore to petitioner and said that remaining amount out of Rs.9

crore settled outside the court would be paid later on due to taxation issues.

However, respondent no.3 did not keep his promise and got the divorce

petition signed in the absence of any lawyer of petitioner by arranging junior

of his advocate. However, after the decree of divorce dated 04.09.2012,

respondent no.3 did not pay any money despite repeated requests and thus,

Crl.Rev.P.474/2017 Page 13 of 17
cheated the petitioner.

23. Here, Section 415 of IPC is relevant which defines ‘cheating‟ as

“whoever by deceiving any person, fraudulently or dishonestly induces the

person so deceived to deliver any property to any person, or to consent that

any person shall retain any property, or intentionally induces the person so

deceived to do or omit to do anything which he would not do or omit if he

were not so deceived, and which act of omission causes or is likely to cause

damage or harm to that person in body, mind, reputation or property is said

to “cheat”.”

24. Section 420 of the IPC states that “in case the person cheats and

dishonestly induces the other person deceived to deliver any property to any

person, or to make alter or destroy the whole or any part of a valuable

security, or anything which is signed or sealed, and which is capable of

being converted into a valuable security, shall be punished with

imprisonment of either description.”

25. From the allegations in complaint and statement of petitioner, it is to

be seen as to whether she was cheated or not. Case of petitioner is that there

was an agreement dated 13.02.2012 which was never complied with by

Crl.Rev.P.474/2017 Page 14 of 17
respondent no.3.

26. In present case, if the agreement dated 13.02.2012 was not complied

with regarding payment of amount, petitioner could avail correct recourse of

law by filing civil suit for specific performance of said agreement dated

13.02.2012. Undisputedly, divorce between the parties took place on

01.09.2012. As per allegation, during this period, respondent no.3 was not

performing said agreement and pretending that he would be making

payment outside the court. This version of the petitioner even if presumed to

be entirely correct, it cannot be said that the petitioner was induced not to

get it performed and thereby she was cheated. The petitioner was having

remedy before the Court of competent jurisdiction at the time of divorce

petition and she could have disclosed said fact and not enter into the

agreement with respondent no.3 for passing first motion or final motion of

divorce. However, she never made any complaint before Competent Court

that there was any other agreement whereby she was assured of additional

payment over and above the settlement amount arrived at between the

parties in the divorce proceeding. During Court proceeding, at the time of

pendency of divorce petition, no objection was raised regarding the amount

of permanent alimony by petitioner.

Crl.Rev.P.474/2017 Page 15 of 17

27. However, based upon the allegations, petitioner has sought remedy

that the court should go behind the settlement arrived between the parties at

the time of divorce which is not permissible under the law.

28. In view of above, the learned Trial Court opined that the remedy, if

any, regarding this allegation was available with petitioner at the time of

divorce proceeding or if any before the Civil Court for the recovery. It

cannot be said that the petitioner was ever induced to agree to the settlement

amount arrived at before ld. Family Court by respondent no.3 with

assurances and making petitioner believe that remaining payment would be

made later on. It was a separate agreement and was capable of being

specifically performed. In the agreement itself, it is clearly stipulated that

amount of Rs.9 Crore will be paid after divorce. Thus, it was an independent

agreement between the parties having no concern with mutual settlement

arrived at in divorce proceedings. Accordingly, learned Trial Court

observed that it could have been enforced to be performed separately. It

cannot be said that because of this agreement, petitioner was induced to

enter into the settlement in divorce proceedings.

29. In addition to above, learned Trial Court observed that during the

argument, it was disclosed on behalf of respondent no.3 that petitioner filed

Crl.Rev.P.474/2017 Page 16 of 17
suit bearing No.04/14 before Ld. Family Court regarding this allegation, but

said suit was withdrawn. This fact was not denied on behalf of petitioner.

Thus, learned Trial Court arrived at a conclusion that there is no material

available on record to induce the petitioner later on.

30. In view of the above facts narrated above, the judgments relied upon

by the counsel for the petitioner are of no relevance.

31. Keeping in view the above discussion and the settled position of law,

I find no illegality and perversity in the impugned order passed by the Trial

Court.

32. Finding no merit in the present petition, same is, accordingly,

dismissed.

(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 13, 2020
ab

Crl.Rev.P.474/2017 Page 17 of 17

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