KULDEEP KUMAR KOHLI
PRESIDENT
FEDERATION OF RESIDENTS WELFARE ASSOCIATION
08860332402
FORFORWA@GMAIL.COM
IN
THE COURT OF SHRI MOHD ZAKARIA KHAN, JMIC, SOHNA
Kuldeep Kumar Kohli S/o Late Sh. Prem Nath Kohli R/o RZ 200B, Street No. 3, Ram Chowk,
Sadh Nagar Part –I, Palam Colony, New Delhi - 110045
….Complainant
Versus
1.
Ansal Retreat Resident Welfare Association
(ARRWA), a Society with Registered Address at G 3A, Ansal Aravali Retreat,
Village Raisina, District Gurgaon, Haryana through its President Mr. Rajesh
Vats
2.
Mr. Rajesh Vats, President, ARRWA
3.
Mr. Yogesh Singh, Secretary, ARRWA
4.
Mr. Birendra Singh Rawat, Treasurer,
ARRWA
5.
Mr. Mukesh Arora, Vice-President, ARRWA
6.
Mr. Guneet Singh Dhillon, Joint
Secretary, ARRWA
Accused
2 to 6 are available at address G-3A, Ansal Aravali Retreat, Village Raisina,
District Gurgaon (H.R)
7.
Unknown traders or persons who bought
the pipeline as scrap metal.
…..Accused
PETITION FOR FRESH
INVESTIGATION OF CRIMINAL COMPLAINT U/S 290, 291, 379, 406, 411, 413, 414, 417,
425, 430, 431, 120B/34 of IPC
1.
That the complainant is an owner of a plot of land, numbered A-2 in The
Ansal Aravali Retreat at Village Raisina, Distt Gurgaon. The Ansal Aravali
Retreat is a project having been undertaken by the Ansal Properties &
Infrastructure Ltd. (APIL), wherein plots of land were demarcated and sold as
Farm Houses.
2.
That the Aravali Retreat Residents Welfare Association (ARRWA) along
with its office bearers, which include the Accused numbered 2 through 6 above,
collectively referred to as the Accused, represent in general and to the public
that they are the resident welfare society for the Ansal Aravali Retreat at
village Raisina, Tehsil Sohna, District Gurgaon and hence deems itself in all
its general correspondence as the representative of all residents of the Ansal
Aravali Retreat, Ansal Aravali Retreat at village Raisina, Tehsil Sohna, District
Gurgaon
3.
That the ARRWA had obtained in an opaque manner the maintenance right of
the common property and infrastructure in the Ansal Aravalli Retreat, at
village Raisina, Tehsil Sohna, District Gurgaon from the builder, Ansal
Properties and Infrastructure Limited, on 10TH April, 2015 The
Complainant obtained through an RTI filed with the office of the Registrar of
Societies a copy of a letter whereby Mr Yogesh singh, Secretary of ARRWA had
requested for intervention on behalf of the Registrar to enable hand over of
maintenance of the Ansal Aravali Retreat. The true copy of the letter is
annexed hereto as Exhibit-A.
4.
That the Complainant along with other residents sometime around January
2016 came to know of the illegal and improper removal of water pipelines installed
in the Ansal Aravali Retreat for the benefit of the plot owners and residents laid down
by developer Ansals Properties and Infrastructure Limited. Upon further investigation it was found that
galvanised water supply pipelines of various sizes (8 inches) were being
removed in an illegal manner from the campus of the Ansal Aravali Retreat, village
Raisina, Tehsil Sohna, District Gurgaon and being sold as scrap metal by the
Accused. To the knowledge of the Complainant and other residents, such
pipelines were laid by the developer Ansals Properties and Infrastructure Limited at the time of the real estate project being founded, and this pipeline
network is an essential part of the infrastructure and land. The representative
of the concerned residents, Raisina Aravali Retreat Residents Welfare
Association society, through its office bearer Col. Rampal Suhag (Retd) lodged
a complaint vide letter dated 14.01.2016 apprising the SHO of PS Bhondsi of the
wrongs being committed along with photographs of the act. Copies of the
photographs of the pipes removed from the site are enclosed herewith as Exhibit 2A, 2B, 2C, 2D & 2E.
5.
That to the knowledge of the Complainant, no action was undertaken by
the police in the matter, and the accused continued to extract and sell the
pipeline from the Ansal Aravali Retreat. The Complainant believes that the
non-action on part of the Police further emboldened the Accused.
6.
That the Complainant understands that the infrastructure built in the
Ansal Aravali Retreat is for the benefit of all owners and residents, and that
due to the cost of such infrastructure having been obtained from the owners by
the builder, such infrastructure, including the pipeline for water supply are
owned as common property by all the residents of the Ansal Aravali Retreat.
Hence, it can only be seen that the developer Ansals Properties and Infrastructure Limited or the maintenance agency appointed by the
developer ARRWA, are responsible to the owners and residents for maintenance of
the infrastructure. Selling (without the prior permission of all Farm Land owners) of pipeline as scrap metal for Rs. 2, 80,121.00
(Rupees two lakhs eighty thousand one hundred and twenty only) is blatant abuse
and criminal breach of such trust.
7.
That the Complainant and several other residents including members of
the accused association like Col. Ram Pal Suhag, Shri Sudhir Agarwal, Capt.
Vijay Kumar, Shri Vishwas Makhija, seeing no improvement in the situation again
asked the complainant to file a complaint and apprise the police and
authorities of the blatant breach of trust and/or theft being carried out.
Towards the same, again Col Rampal Suhag, President RARRWA, sent out a letter
to the Commissioner of Police, Gurgaon along with subsequent one to SHO P.S.
Bhondsi.
8.
That the Complainant is aware that there is a maintenance agreement
subsisting between the ARRWA and the Ansals Properties and Infrastructure Limited (APIL).
9.
That the Accused were vested with trust on behalf
of the residents, including the complainant, to care and upkeep of the property
and infrastructure of the Ansal Aravali Retreat. The Accused (with the dishonest intentions) violated and committed
breach of such trust for wrongful gains by selling the GI Pipes amounting to Rs. Rs. 2, 80,121.00. The act of excavation and
removal of pipes for gains without prior consent or approval of the real owners
to the pipelines, which are the residents and owners of the farm houses and
plots in the Ansal Aravali Retreat and the subsequent selling of such pipeline
in a discrete manner shows ample proof of the intention of the Accused.
10.
That the Accused under the garb of a residential
welfare society in an opaque arrangement with the Ansals Properties and Infrastructure Limited (APIL) and on the pretext of carrying
out maintenance of the Ansal Aravali Retreat in furtherance of their common
intentions and being in criminal
conspiracy / colluded with each other, excavated
the water supply pipeline without any prior approval or proper authority of any
kind and ultimately succeeded in selling such pipeline as scrap metal showing the worth as Rs. 2, 80,121.00, without there being any right, title or
interest to do so, which resulted into siphoning of lakhs of rupees from the
residents of the Ansal Aravali Retreat, including the Complainant. It is
thereby rendered the Accused liable to be prosecuted and punished for
commission of offences by them in collusion with each other.
11.
That the Accused, in active connivance, caused
irreparable damage to water supply and irrigation to farm land by excavating
and removing the pipeline. Furthermore their act of excavation caused damage to
the roads and public path, rendering them obstructive and injurious to travel.
12.
That the Accused, in active connivance with each
other, not only succeeded in causing such a huge wrongful loss to tune of lakhs
of rupees to the residents including the complainant for their wrongful gains,
but also caused huge dent to the public exchequer.
13. That
the complainant had filed a complaint under Sections 290, 291, 379, 406, 411,
413, 414, 417, 425, 430, 431, 120B/34 of IPC before this Honourable Court on
3.6.2016 in connection with the act of excavation and removal of pipes for
gains without the proper consent and approval of the owners of the farm houses
and plots in the Ansal Aravali Retreat and the subsequent selling of such
pipelines in a discrete manner.
14. This
Honourable Court ordered on 9.6.2016
that from the perusal of the complaint a prima facie cognizable case u/s 379 is
made out against all the accused listed in the complaint and therefore directed
the SHO, PS, Bhondsi to investigate the present case as envisaged u/s 156 (3)
Cr. P.C. after the registration of the FIR.
15. That
an FIR No. 232 dated 23.6.2016 under Section 379 was registered by PS Bhondsi,
Tehsil Sohna, District Gurgaon wherein the total value of the property stolen
was written as Rs. 5,000.00
16.
That based on the orders of this Honourable Court,
immediate stringent actions were required to be initiated by the SHO, Bhondsi by conducting a thorough interrogation and investigation before the accused elude the law of the land in
order to separate the
grain from chaff and in the interest of justice.
17.
That this however never appeared to be the intention of the SHO, Bhondsi
from day one as is visible from the value of the stolen property written by him as Rs. 5,000.00 in the FIR filed by
him as per the orders of this Honourable Court before conducting any investigation and interrogation and without any basis the
SHO preferred to write the value of the stolen pipes as Rs. 5,000.00
18.
That the pipes that have been stolen and were installed earlier were GI
Pipes of 80 schedule 10 mm thick GI Pipes of a length of around one kilo meter
i.e. 1000 meters and the probable life of this pipes at an average corrosion
course is approx. 50-60 years. These pipes were GI pipes which were Zinc Coated
from inside to minimize metal losses (corrosion) due to chemical reactions and these
were with layer of zinc to give 100% protection from rusting. The metal zinc lasts long and helps to
increase the life of iron or steel.
19.
Some of the important features of Galvanized Iron pipes are higher
longevity as well as durability,
anti-rust coating and superb finishing, higher resistance to corrosion,
adhere to International Quality Standards
20.
These pipes weigh 46 kgs/Mtrs and hence the total weight of the pipes
that have been stolen is approx. 46000 kilograms which means 46 tons. The cost
of the 1000 meters pipes is approx. Rs. 4000 per meter and hence the total cost
comes to Rs. 40.00 lakhs
21.
These pipes were placed on a cemented platform of 2.5 feet x 2.5 feet x
2.5 feet at a distance of 20 meters each which means approx. 50 platforms were
constructed to embed the pipes on the platforms so that the same are not stolen
or damaged by anyone.
22.
The construction cost of each such platform is approx. Rs. 2500. Per platform and hence a total cost of Rs.
1.25 laks.
23.
The transportation cost, labour, handling of 43 tons of pipes to the
Ansals Aravali Retreat which is on a altitude of 500 feet itself comes to
approx. Rs. 8.5 lakhs.
24.
Hence the total cost of the pipes including laying, transportation,
labour, handling etc. comes to Rs. 50 lakhs as per details provided above.
25. That
a status report was filed by IO HC Pawan Kumar after investigating the matter
wherein he has stated that he has been given the following documents based on
which he has concluded that no offence under Section 379 has been committed by the
Accused having colluded with each other in furtherance of their common
intention.
a. An
Agreement for maintenance between the Accused being the office bearers of the
Association from Ansals.
b. Bill
for sale of existing pipes for which the case has been filed
c. Three
bills for purchase of new pipes
d. Three
bills for placing new pipes in lieu of old pipes
26. That
as is evident from the report of the IO HC
Pawan Kumar given above, the
investigation was got done by the local police in a very careless manner
without observing the provisions of the law and the discharge report is
absolutely a biased report and the same has been prepared by the local police
in order to give the benefit to the
accused and the discharge report is totally false and frivolous tainted and partial
discharge report without any basis and substance and the same has been prepared
because of extraneous consideration in order to help the accused.
27. That
this Honourable Court had ordered the matter to be investigated as the Honourable court felt that prima facie
cognizable case u/s 379 is made out against all the accused.
28. It has been confirmed in the report submitted
by the HC as detailed above that the moveable property i.e. pipes, after being
severed from the foundation, has been sold means it has been moved and taken
out of the possession of the owners, without the consent of the owners and
hence the offence under section 379 has been committed.
29. Any
immoveable property in the entire complex is the undivided common property of
all the owners and absolutely beyond the jurisdiction of any Resident Welfare
Association to be sold without the permission of each and every owner.
30. That
the IO HC in his report has further stated that the old pipes have been sold
and a bill for the sale of the said pipes has been provided to him, which
itself is evidence that the pipes have been removed and sold.
31. That
the request by few of the office bearers to sell the old pipelines cannot be
construed as a decision of each and every owner of the farm land at Ansals
Aravali Retreat as each individual owner of the farm land is the owner of the
pipes being the undivided common
property and hence no other
individual has right to make a request
or give a consent for sale of my priority and if it has been done by those few
and acted upon by the office bearers, in such a case all of them have colluded
with each other in furtherance of their common
intentions, excavated the water supply pipeline without any prior approval or
proper authority of any kind and ultimately succeeded in selling such pipeline
as scrap metal, without there being any right, title or interest to do so,
which resulted into siphoning of lakhs of rupees from the residents of the
Ansal Aravali Retreat, including the Complainant and hence an offence under
Section 379 of IPC.
32.
That it is law fact that the property
i.e. the pipes which were embedded on the cemented platform was an undivided
common property belonging to each and every owner and the Ansals Aravali
Retreat Residents Welfare Association and its illegally elected office bearers,
which has been handed over the maintenance by APIL without the consent,
knowledge and approval of the
owners, were vested with trust on
behalf of the residents, including the complainant, to care and upkeep of the
property and infrastructure of the Ansal Aravali Retreat. The Accused violated
and committed breach of such trust for wrongful gains. The act of excavation
and removal of pipes for gains without prior consent or approval of the real
owners to the pipelines, which are the residents and owners of the farm houses
and plots in the Ansal Aravali Retreat and the subsequent selling of such
pipeline in a discrete manner shows ample proof of the intention of the
Accused.
33.
That no investigation has been made to find out
where the existing pipes have been installed or what is the status of the
existing pipes.
34.
That the placement of the new pipes does not in any
way undermine the offence committed by the Accused of having sold the pipes
illegally.
35.
That no investigation has been made on the dates of
the replacement of the pipes which is much after the complainant having filed
this complaint after being scared with the orders of the Honourable Court of
filing an FIR against them and in any case placing fresh pipes does not absolve
the accused of the crime committed by them in collusion with each other of
selling the property belonging to other farm owners.
36.
That no details have been provided on the schedule
and thickness and the kind of pipes that have now been placed and it is understood that the newly
installed pipes are 10 schedule 3.00 mm thick MS Pipes with no Zinc Coating
inside with probably life of not more than 5 years. These pipes are not more than 12-13 kgs/meter
in weight.
37. That
the IO HC Pawan Kumar did not make any efforts to find out if the basic
standard operating procedures for sale of any common undivided property were
followed or not. Was any standing
committee formed for sale of such costly items.
Was any proper advertisement released in the papers inviting quotations
for purchase of the items? Were any
comparative quotes were obtained to maximise the sale proceedings.
38. That
the investigating officer has played into the hands of accused, has been
irresponsible in making the investigation and the discharge report has been
malalfidely prepared with the sole intention of helping the accused.
39. That
it is a settled law that the investigation of the police is the opinion of the
police and the same is not binding upon this Honourable Court and the
complainant has got ample evidence to prove the allegations of section 290,
291, 379, 406, 411, 413, 414, 417, 425, 430, 431, 120B/34 of IPC.
40. That
the complainant was surprised and astonished when he came to know that the
police had filed the discharge report in respect of the accused. It is a settled law that the result of
investigation by the police is never used as legal evidence as held by the
Honourable Supreme Court in Kaptan Singh Versus State of M.P 1997(3) RCR – Page
135.
41. That
this Honourable Court has already ordered an FIR to be lodged and now the
complainant wants to be heard by this Honourable Court so that truth may come
out before this Honourable Court in respect of the irresponsible investigation
made by the IO with the sole intention of helping the accused and complainant
has enough evidence to prove this that the investigations made by the IO HC
Pawan Kumar and the due opportunity to prove the allegation against the HO IC be
given to the complainant before accepting the discharge report of the HC IO and
a fresh investigation may kindly be ordered.
42. That
it is a settled legal proposition of law that if the discharge report is
submitted by the police shows that no offences made out it is open to the court
to accept the report after hearing the complainant and to provide opportunity
of being heard to the complainant and on the other hand if the court feels on
perusal of such report that the alleged offence has been committed by that
person the court has got power to ignore the conclusion arrived by the investigation agency in its discharge report.
And in that eventuality it is again open to the court to independently apply
its judicial mind to the facts emerging there from the circumstances and to
take cognizance of the offence and to order fresh investigation.
P R
A Y E R
It
is, therefore, prayed that the petition for
fresh investigation may kindly be entertained and the complainant may
kindly be afforded the opportunity of leading independent evidence, as per the
provisions of law in the interest of justice, equity and fair play.to prove that
present investigation report is biased and with the sole intention of helping the
accused
Complainant
Kuldeep
Kumar Kohli S/o Late Sh.
Prem Nath Kohli
R/o RZ 200B,
Street No. 3,
Ram Chowk, Sadh Nagar Part –I, Palam Colony,
New Delhi -
110045
Through
Counsel
Raj
Kumar Goyal
Advocate,
Gurgaon
IN
THE COURT OF SHRI MOHD ZAKARIA KHAN, JMIC, SOHNA
Kuldeep Kumar Kohli S/o Late Sh. Prem Nath Kohli R/o RZ 200B, Street No. 3, Ram Chowk,
Sadh Nagar Part –I, Palam Colony, New Delhi - 110045
….Complainant
Versus
1.
Ansal Retreat Resident Welfare
Association (ARRWA), a Society with Registered Address at G 3A, Ansal Aravali
Retreat, Village Raisina, District Gurgaon, Haryana through its President Mr.
Rajesh Vats
2.
Mr. Rajesh Vats, President, ARRWA
3.
Mr. Yogesh Singh, Secretary, ARRWA
4.
Mr. Birendra Singh Rawat, Treasurer,
ARRWA
5.
Mr. Mukesh Arora, Vice-President, ARRWA
6.
Mr. Guneet Singh Dhillon, Joint
Secretary, ARRWA
Accused
2 to 6 are available at address G-3A, Ansal Aravali Retreat, Village Raisina,
District Gurgaon (H.R)
7. Unknown traders or
persons who bought the pipeline as scrap metal.
......
Accused
List
of Witnesses
1) Kuldeep
Kumar Kohli
2) Col.
Ram Pal Suhag
3) Shri
Sudhir Agarwal
4) Capt.
Vijay Malik
5) Shri
Vishwa Makhija,
6) Shri
N K Jain
7) Shri
Mohinder Grover,
8) Shri
Amit Dhir
9) Shri
Munish Kumar
10)
Any other person which this court may
deem fit
11)
Any Expert who can assess the value of
the pipes
Complainant
Kuldeep Kumar Kohli S/o Late Sh.
Prem Nath Kohli R/o RZ 200B,
Street No. 3, Ram Chowk, Sadh
Nagar Part –I, Palam Colony,
New Delhi - 110045
Through
Counsel
Raj Kumar Goyal
Advocate, Gurgaon
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