Delhi Court abolishes order to shut cheating case against Gautam Gambhir; also instructs ED to investigate
A Delhi Court recently quashed an order by a magistrate court to discharge Indian cricket team coach Gautam Gambhir in a cheating case.
Homebuyers filed a cheating case against three real estate companies for not delivering possession of flats in housing protection.
In 2011, three companies, Rudra Buildwell Realty, HR Infracity, and UM Architectures and Contractors, advertised and jointly promoted a housing project, ‘Serra Bella’.
Gambhir, apart from being an additional director of Rudra, was a Brand Ambassador for the project.
On October 29, special judge Vishal Gogne said that the discharge order passed by the magistrate court could not properly express its mind on the allegations against the freedom to travel as an MP Gambhir.
In this regard, the Court noted that Gambhir’s allegations deserve further investigation because he alone had direct interaction with investors in his capacity as brand ambassador.
It also referred to Gambhir in Rudra and asked whether any portion of the investors’ money had been paid to him.
Even though the said accused was discharged, the above-said order did not mechanically reflect that the accused person had paid ₹6 crores to Rudra, and the accused person got ₹4,85,00,000 refunded by the company. The learned trial judge, while analyzing the charge sheet, did not receive any clarification to explain whether the amounts paid back to him by Rudra had any proven nexus and whether it arose or was sourced from the funds received from the investors in the project in question,” the Court said.
It further noted that, as he has been made out to be an influential brand ambassador of the said company, Gambhir indeed had business dealings with it because, in fact, he was an additional director of the Rudra from June 2011 to October 2013.
“However, the impugned order proceeded to generalize the findings against the named accused (Gautam Gambhir) by incorporating the findings against him with observations of the Court dealing with other accused (not made in the complaint),” the Court remarked.
Similarly, the judge noted that cheating is a scheduled offence as per the PMLA, and the matter might have to go to the Enforcement Directorate (ED).
Three revision cases against the order of the ACMM/ trial court at Rouse Avenue court passed on Dec 10 last year were pending before the Court of Law.
The case started when the homebuyers were ‘frozen’ into non-development of flats despite having bought the flats in the project and paying money.
They later realised the project was never sanctioned, and the Allahabad High Court had suspended any business dealings or other activities on the land in 2014.
This culminated in the registration of a cheating case against the accused. However, the trial court in 2020 was only able to find a prima facie case against three persons and two companies. It dismissed the others, including Gambhir.
Bearing the above facts in mind, the trial court preemptively discerned that a prima facie case was established against such three persons and two companies, namely, Rudra Buildwell Realty and HR Infracity.
But it acquitted five other accused, including Gambhir.
In each case, the homebuyers then filed a revision petition challenging the trial court’s order.
As for the special judge regarding sectarian laws, he said that the trial court did not specifically address the evidence provided in the chargesheet regarding the five accused persons directed to be charged or the other five accused who were acquitted.
This way, the Ld. The Trial Court has misplaced the accused, who has come out clean. Therefore all such findings are vitiated for herein above-said reasons and the respective judgements qua all accused who were discharged, therefore, suffer from a material infirmity in law on account of lack ofANNERSED MINORITIES EMBRACED IN FIVE FRIENDLY FIRMS: A CRITICAL ANALYSIS 22Their argument that discrimination has not been
For this reason, the special judge described the trial court‘s order as a “nonspeaking order.”
“While the bench said that the investigation has no merit and only reproduced the allegations of the prosecution there is no evoking of the mind of the judge by mere stringing together of assertions as are seen on the chargesheet. The order is required to indicate why they have arrived at such a conclusion they seek to make. Still, the impugned order did not indicate how exactly the three companies were paid or as to the exact allegation of the prosecution against each of the first three accused,” it said.
The Court noted this was woefully insufficient, and the trial court was entitled to order further police investigation.
It is quite possible that the said non-speaking order may have been occasioned by the glaring inadequacies in the investigation referred to in this order. Before the trial court summoned the charge, today this court needs to admit that the trial court should have turned to its powers to order further investigation on the sparse investigation carried out,” the court observed.
Hence, deciding so, it quashed the discharge order and remanded back the matter to the trial court for passing a reasoned fresh order of discharge as to each accuse, for the specific offence or provision as to which charges were framed, and for each of the materials cited by the prosecution in the charge sheet.
The trial court must make findings regarding each accused that are specific at the level of scrutiny applicable at this stage of the charge. Hence, the prosecution, making their submissions adequately to the trial court, shall follow the above template. The special judge civil also further ruled.
However, the Court added that before a fresh trial on any aspect of the charge, the trial court is not to reach what could be regarded as uninformed or even baseless verdicts or conclusions; the directions for further investigation shall be considered.
Directions to ED
Apart from putting aside the discharge order, the judge noted that cheating is a scheduled offence under PMLA, and the ED might have to investigate the matter.
The amount claimed as cheated of Rs 3.5 crores, mentioned in the report as the booking amount received from the investors, if it has emerged as a result of the criminal conduct of any of the accused persons (whether charged or discharged) may require rigorous examination to establish “money laundering” Proceeds of crime, and if any accused person was involved in activity related to such possible “proceeds of crime” either by concealing
It also directed the ED to scrutinize the allegations regarding Money Laundering and submit a status report by 11 November at the latest.
However, the judge noted that the judge was directing the ED to take an independent view of the allegations with regard to the offence of money laundering, not to register a case.
“As this court would become functus officio on disposal of present revision petitions and the ld trial court is not a special court for matters relating to PMLA as well, the said status report shall be filed by the ED through the prescribed mode of filing of cases under PMLA for MPs/MLAs, before the ld Principal District and Sessions Judge, RADC, New Delhi,” the Court further said.
