Rajesh Malik vs State Of Haryana

MANISHA BATRA, J.(Oral)

The instant revision petition has been filed by the petitioner challenging the order dated 07.03.2026 passed by the court of learned Judicial Magistrate First Class, Gurugram in case arising out of FIR No.203 dated 27.05.2021 registered under Section 420 of IPC at Police Station DLF, Phase I, District Gurugram, whereby the application moved by the petitioner for discharge, has been dismissed and charge under Section 420 of the IPC has been framed against him.

Brief facts of the case relevant for the purpose of disposal of this petition are that the aforementioned FIR was registered on the basis of a written complaint filed by the complainant Gaurav Chaudhary, alleging therein that Ved Prakash Malik and his wife Savitri Malik, who are parents of the present petitioner, had purchased a plot bearing No. G-3/20, Phase-I, DLF City, Gurugram vide a sale deed registered on 21.09.1994. On 05.09.2020, the present petitioner approached the complainant and by representing that he had become the sole owner of the aforementioned property on the basis of a relinquishment deed executed by his sisters, Neeru Suri and Rashmi Khanna, in his favour and offered to sell the above-said property to the complainant. By making false representations and inducement, he made the complainant believe that the relinquishment deed was a genuine document and the property stood in his name. Believing him, the complainant entered into an agreement to purchase the aforementioned property for a sale consideration amount of Rs. 5,55,11,000/-. He paid an amount of Rs. 41,00,000/- by way of cash as well as cheques. As per the terms of the agreement, the sale deed was to be executed on or before 19.12.2020. Subsequently, on making inquiries, the complainant came to know that the property in question was still standing in the name of Ved Prakash Malik and also that the relinquishment deed purported to be executed by the sisters of the petitioner was a false and forged document. The sisters of the petitioner were contacted by the complainant, who denied executing any such relinquishment deed. By alleging that the petitioner, with intent to cause wrongful loss to him and to cheat him, had extracted money from him and had forged documents, the complainant prayed for taking action in the matter.

After registration of the FIR, investigation proceedings were initiated. The petitioner was arrested and was subsequently extended the benefit of bail. After completion of necessary investigation, challan was presented in the court.

As discernible from the record, the petitioner moved an application under Section 239 of the Code of Criminal Procedure, which corresponds with Section 262 of BNSS, seeking his discharge on the ground that the dispute between the parties was of a civil nature and no case for commission of offense punishable under Section 420 of the IPC was made out. The said application has been dismissed by the learned trial court by passing the impugned order dated 07.03.2026.

It is argued by learned counsel for the petitioner that he has been falsely implicated in this case. He was booked for commission of offences punishable under Sections 406, 420, 467, and 471 of the IPC, but all the other offences, except the offence under Section 420 of the IPC, have since been deleted. In fact, the complainant himself could not arrange the remaining sale consideration amount for the purpose of execution of the sale deed on 19.12.2020 as per the terms of the agreement, and it was he who had prevailed upon the petitioner to extend the date of execution of the sale deed till 19.03.2021. The complainant himself had entered into an agreement to sell the same property with one Amarjit Singh on 04.03.2021 for a sale consideration amount of Rs. 6.78 crores and had even received an amount of Rs. 20,00,000/- from the above-said Amarjit Singh. He did not contact the petitioner for execution of the sale deed till 19.03.2021. By showing his own bona fide, the petitioner had issued a legal notice dated 17.03.2021 to the complainant terminating the agreement to sell. The relinquishment deed executed by his sisters was not the basis for execution of the agreement between the petitioner and the complainant. Moreso, the sisters of the petitioner had sworn affidavits in favour of the petitioner relinquishing their shares in the property. The ingredients for commission of offence punishable under Section 420 of the IPC are not at all attracted in this case. The dispute between the parties is of a civil nature, which has been given a criminal colour. The FIR has been lodged to misuse the process of law by the respondent-complainant, who himself was having dishonest intention. There are no chances of the case culminating into conviction, even if the allegations in the FIR are assumed to be correct. While passing the impugned order, the learned trial court did not take all these facts into consideration and committed a grave error in declining the prayer made by the petitioner for discharging him. With these broad submissions, it is urged that the impugned order is liable to be set aside, the revision petition deserves to be accepted, and the application filed by the petitioner for his discharge deserves to be allowed. To fortify his arguments, learned senior counsel for the petitioner has relied upon Rikhab Birani and another vs. State of Uttar Pradesh and another : 2025 SCC Online; Anand Kumar Mohatta and another vs. State (NCT of Delhi) and another : (2019) 11 SCC 706; Radheyshyam and others vs. State of Rajasthan and another : 2024 SCC OnLine SC 2311; A.M. Mohan vs. State represented by SHO and another : (2024) 12 SCC 181 and Naresh Kumar and another vs. State of Karnataka and another : 2024 SCC Online SC 268.

Per contra, learned State counsel has argued that the allegations against the petitioner are specific and serious in nature. After conducting a thorough and proper investigation in the matter and finding his complicity in the commission of the offence punishable under Section 420 of the IPC, challan was presented against the present petitioner. The observations as made by the learned trial Magistrate while passing the impugned order are well-reasoned, and no ground for interfering with the same is made out. It is, therefore, stressed that there is no merit in the petition, and hence it is argued that the same is liable to be dismissed.

This Court has heard the rival submissions made by learned counsel for the parties at considerable length.

Before proceeding further, it would be proper to have a look at the provisions of Section 262 of BNSS (which is pari materia with Section 239 of Cr.P.C.), which read as under:

The first and the foremost question that has arisen before this Court for consideration is as to whether the petitioner was entitled to be discharged? In the considered opinion of this Court, the answer to this question is in negative for the reasons to be recorded in the coming paragraphs.

The law with regard to the nature and degree of evaluation of the material placed by the investigating agency before the Court at the stage of consideration of an application for discharge is well settled. Section 262 of BNSS, which corresponds to Section 239 of Cr.P.C., requires the Magistrate to consider the police report and the documents sent with it and to discharge the accused if the charge is found to be groundless. At this stage, the Court is not required to conduct a mini-trial or undertake a meticulous appreciation of the evidence but is required to sift and weigh the material for the limited purpose of determining whether the allegations and the material collected during investigation disclose a prima facie case or raise a strong suspicion warranting the accused to face trial. The Court is not expected to examine the probative value of the material in the manner required at the stage of final adjudication or to determine whether such material would ultimately result in conviction. In Union of India v. Prafulla Kumar Samal : (1979) 3 SCC 4, the Hon’ble Supreme Court held that the Court has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out, while it is not required to conduct a roving enquiry into the pros and cons of the matter or weigh the evidence as if it were conducting a trial. Similar principles were reiterated in P. Vijayan v. State of Kerala : (2010) 2 SCC 398, wherein it was held by the Hon’ble Supreme Court that at the stage of discharge, the Court is required to consider whether there is sufficient ground for proceeding against the accused and is not required to hold a detailed enquiry into the merits of the prosecution case. In State of Gujarat vs. Dilipsinh Kishorsinh Rao : 2023 SCC OnLine SC 1294, while relying upon State of Maharashtra vs. Som Nath Thapa : (1996) 4 SCC 659 and State of M.P. vs. Mohan Lal Soni : (2000) 6 SCC 338, the Hon’ble Supreme Court reiterated that the defence of the accused is not to be examined at the stage of discharge. It was further held that the Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. The primary consideration at the stage of framing of charge is the test of existence of a prima facie case and at this stage, the probative value of materials on record need not be gone into. The nature of evaluation to be made by the Court at the stage of framing of the charge is to test the existence of prima facie case. It was also held that at the stage of framing of charge, the Court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial. Likewise, in Vishnu Kumar Shukla and another vs. State of Uttar Pradesh and another : 2024 AIR Supreme Court 90, with reference to Rumi Dhar vs. State of West Bengal : (2009) 6 SCC 364 and State of Tamil Nadu vs. N. Suresh Rajan : (2014) 11 SCC 709, similar principles were reiterated. Thus, while considering an application under Section 262 of the BNSS, the Court is required to apply its judicial mind to the material collected during investigation and ascertain whether the charge is groundless; however, it is not required to embark upon a detailed appreciation of evidence or determine the ultimate guilt or innocence of the accused, which is a matter to be adjudicated upon after trial.

On applying the aforementioned principles to the facts and circumstances of the present case, this Court is of the considered view that the petitioner has failed to make out a case for discharge. The allegations against the petitioner are not confined to a mere failure to honour the terms of an agreement to sell. The specific allegation is that the petitioner approached the complainant and represented himself to be the exclusive owner of the property on the basis of a relinquishment deed allegedly executed by his sisters. Acting upon such representation, the complainant entered into an agreement to purchase the property for a sale consideration of Rs.5,55,11,000/- and paid an amount of Rs.41,00,000/- to the petitioner. It is thereafter alleged that, upon making inquiries, the complainant discovered that the property continued to stand in the name of the petitioner's father and that the sisters of the petitioner denied having executed the relinquishment deed. Thus, the prosecution case is that the petitioner made a representation regarding his title and ownership by relying upon a document whose very execution has been disputed by the persons shown to be its executants and, on the basis of such representation, obtained substantial money from the complainant. These allegations, if taken at their face value along with the material collected during investigation, cannot be said to constitute a mere case of breach of a contractual obligation. Rather, they prima facie disclose the essential elements of deception and inducement which require examination during trial.

The plea of the petitioner that the complainant subsequently failed to arrange the balance sale consideration, that the date for execution of the sale deed was extended and that the complainant had entered into another agreement with a third person, cannot be examined in isolation at the stage of discharge. These are essentially matters of defence and their evidentiary value can be assessed only after the parties lead evidence. Likewise, the assertion that the relinquishment deed was not the basis for execution of the agreement to sell and that the petitioner's sisters had executed affidavits in his favour cannot, at this stage, be accepted so as to negate the prosecution case. The material collected during investigation has to be considered as a whole and not by selectively accepting the version of the accused. The fact that the other offences initially invoked against the petitioner have subsequently been deleted also does not, by itself, furnish a ground for discharge from the remaining offence under Section 420 IPC. What is required to be seen is whether the material on record discloses sufficient ground for proceeding against the petitioner for the offence which survives. In the present case, the allegations concerning the representation of ownership, the disputed relinquishment deed, the payment of Rs.41,00,000/- and the subsequent discovery regarding the actual ownership of the property, taken cumulatively, provide sufficient basis for the petitioner to face trial.

The judgments relied upon by learned senior counsel for the petitioner are distinguishable on their facts and do not lay down any proposition which would warrant discharge of the petitioner in the present case. In the cases relied upon by the petitioner, the proceedings were interfered with in circumstances where the allegations, even if taken at their face value, did not disclose the requisite ingredients of cheating, particularly dishonest intention or inducement and the disputes were found to be essentially civil in character. In the present case, however, the prosecution has specifically alleged that the petitioner made a false representation regarding his ownership and relied upon a relinquishment deed which was subsequently denied by his sisters, pursuant to which the complainant was induced to part with a substantial amount of money. The distinction is therefore material. The present case does not rest merely upon subsequent non-performance of a promise or failure to execute a sale deed. The allegation goes to the very representation made by the petitioner at the inception of the transaction and the circumstances in which the complainant was allegedly induced to make the payment. Consequently, the ratio of the aforesaid judgments cannot be applied mechanically to the facts of the present case at the stage of discharge.

It is also significant that the petitioner seeks to have the rival versions of the parties weighed and the defence material accepted in preference to the material collected by the investigating agency. Such an exercise would amount to undertaking a detailed appreciation of evidence, which is impermissible at this stage. The Court is only required to examine whether the material placed before it raises a prima facie case or a strong suspicion regarding commission of the offence. The Court cannot substitute a possible defence of the accused for the prosecution material merely because the accused asserts that the transaction was bona fide or that the complainant was himself responsible for the failure to complete the transaction. Whether the petitioner genuinely believed himself to be the owner of the property, whether the relinquishment deed was in fact executed, whether the complainant was induced by the representation made by the petitioner, and whether the petitioner possessed dishonest intention at the relevant point of time are all matters which require evidence and cannot appropriately be finally determined in proceedings for discharge.

Thus, the material available on record, when considered in its entirety and without entering into the merits or probative value of the evidence, does not make the charge against the petitioner groundless. On the contrary, the allegations and the material collected during investigation disclose sufficient grounds for proceeding against him for the offence under Section 420 IPC. The learned trial Court has, therefore, rightly declined the prayer for discharge and framed charge against the petitioner. Moreso, a petition filed by the petitioner seeking quashing of the FIR has already been dismissed by this Court, vide order dated 09.09.2026 passed by this Court in CRM-M-27129-202. Keeping in view the discussion as made above, this Court finds no illegality, perversity or irregularity in the impugned order warranting interference by this Court. Consequently, the present petition is dismissed.