Delhi District Court
Hari Niwas Gupta vs . M/S. Om Propmart (P) Ltd. & Ors. on 1 October, 2013
Page 1 of 5
IN THE COURT OF MS. NAVITA KUMARI BAGHA, MM, NEW DELHI
CC No. 21/1/13
Hari Niwas Gupta
S/o Late Sh. R.K. Gupta
R/o 16/4, New Rohtak Road,
Karol Bagh, New Delhi - 110005.
......... Complainant
Versus
1. M/s. Om Propmart (P) Ltd.
Registered Office at:
B2/426, Yamuna Vihar,
New Delhi - 110053.
2. Satish Kumar
S/o Sh. Atal Upadhayay Singh
R/o B2/426, Yamuna Vihar,
New Delhi - 110053.
3. Pankaj Tyagi
S/o Sh. Sauraj Singh
R/o D7, Ground Floor,
East Jyoti Nagar, Durga Puri,
Shahdara, Delhi - 110093.
4. Pawan Tyagi
S/o Sh. Basant Singh
R/o D7, Ground Floor,
East Jyoti Nagar, Durga Puri,
Shahdara, Delhi - 110093.
5. Dev Kumar
S/o Sh. Jaswant Singh
R/o 146B, Pocket, Mayur Vihar,
PhaseII, New Delhi.
Hari Niwas Gupta Vs. M/s. Om Propmart (P) Ltd. & Ors.
CC No.21/1/13
Page 2 of 5
6. Pawan Tyagi
S/o Sh. Shivraj Tyagi
R/o Krishna Apartment,
A95, FA, F4, Dilshad Colony,
Delhi. ................. Accused
Criminal Complaint U/Sec.200 r.w. Sec.156(3) Cr.P.C. against accused persons
for hatching criminal conspiracy and forgery of documents for committing
offence U/Sec.409/420/465/468/471/120B IPC
ORDER:
1. The complainant had filed on 20.03.2013 the complaint U/Sec.200 r.w. Sec.
156(3) Cr.P.C. for seeking direction to SHO, P.S. Tilak Marg for registration of FIR against the accused. The brief facts of the case as narrated in the complaint are as follows: Accused no.1 is primarily doing business of real estate agent and accused no.2, 3 and 4 are its Directors. The complainant was intending to purchase an industrial plot and therefore he engaged accused persons for negotiating an industrial plot and made payment of Rs.15 lakhs in the name of accused no.1 for purchasing an industrial plot in Tronica City, Loni, Ghaziabad, U.P. On 28.05.2008, the complainant made further payment of Rs.35 lakhs on the insistence of accused no.2, 3 and 4, but in the month of June, 2008 the accused persons found themselves unable to meet the commitment to secure viable and good purchase of industrial plot and therefore agreed to refund the abovesaid amount of Rs.50 lakhs by issuing five postdated cheques. But these cheques got dishonoured on presentation due to the reason "Insufficient Funds" and the complainant filed a complaint U/Sec.138 N.I. Act on 09.03.2009 against the accused. The complainant also filed a Civil Suit under Order XXXVII of C.P.C. in the Hon'ble High Court of Delhi bearing Hari Niwas Gupta Vs. M/s. Om Propmart (P) Ltd. & Ors. CC No.21/1/13 Page 3 of 5 CS (OS) No.951/2010 titled as "Hari Niwas Gupta Vs. Om Propmart Pvt. Ltd. & Ors." for recovery of Rs.50 lakhs and in the month of September, 2010, the accused persons filed application under O.37 R.3(5) C.P.C. for seeking unconditional leave to defend and alongwith said application they filed Agreement dated 02.04.2008 and MOU dated 24.05.2008. But the complainant had never executed these documents. His signatures were forged by the accused persons by using modern computer technique like scanning and printing. The accused had committed forgery with ulterior and malafide motive to acquire wrongful gain. The complainant had approached one handwriting expert who had given his opinion regarding the documents being forged documents. The complainant had approached the police, but no action was taken by the police.
Hence, the complainant filed the complaint U/Sec.200 r.w. Sec.156(3) Cr.P.C. before the Court.
2. I have heard the arguments from the counsel Sh. Asim Naeem for the complainant on application U/Sec.156(3) Cr.P.C. and perused the record. After filing of the complaintcumapplication by the complainant, the Action Taken Report was called from the SHO, P.S. Tilak Marg and in the report, the I.O. submitted that though agreement to sell and MOU was executed between the complainant and the accused but due to recession in real estate market, the complainant did not want to buy the plot and thus no cognizable offence was made out. But the counsel for complainant has requested for directing the police to register FIR against the accused and to investigate the matter. However, it is settled law that order for registration of FIR U/Sec.156(3) Cr.P.C. could not be passed in every case in a mechanical way unless there are Hari Niwas Gupta Vs. M/s. Om Propmart (P) Ltd. & Ors. CC No.21/1/13 Page 4 of 5 serious allegations and further that the evidence is beyond the reach of the complainant or the custodial interrogation appears to be necessary for some recovery of articles or discovery of facts. It is held by Hon'ble High Court of Delhi in M/s. Skippers Beverages Pvt. Ltd. Vs. State, 2001 (3) RCR (Criminal) 514, "It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to help the complainant."
3. It is also held by Hon'ble High Court of Delhi in Smt. Mithlesh Vs. The State of N.C.T. of Delhi & Ors., 2009 (4) JCC 2609, "It is not incumbent in each and every case that the Magistrate must direct registration of an FIR and the consequent investigation by the local police. The Magistrate can take an inquiry under Sec.200 Cr.P.C. by examining the complainant and the other witnesses which are produced and Hari Niwas Gupta Vs. M/s. Om Propmart (P) Ltd. & Ors. CC No.21/1/13 Page 5 of 5 then proceed to deal with the complaint under Sections 202 to 204 Cr.P.C. It seems that the petitioner wants to bring bare pressure on the other side by registration of an FIR. This is so on account of the fact that once an FIR is registered other side namely the accused persons would be on the run because they will face an imminent threat of arrest and secondly it becomes convenient for the complainant as well because it becomes a State case where the presence of the complainant is not required on every date of hearing. That is the modus operandi which is invariably adopted and aimed at by every petitioner."
4. In the present case the allegations against the accused are that they had forged the signatures of the complainant on the Agreement to Sell and Memorandum of Understanding. This Court is of considered opinion that it is not a case where the police assistance is required for breaking the case or for discovering some evidence which the complainant himself is unable to collect at his own. It is not a case where the evidence is beyond the reach of the complainant or that the custodial interrogation is required for discovery of fact. Therefore, the present case is not held to be a fit case for directing the SHO to register FIR as the complainant himself can also lead the evidence. Therefore, the prayer to direct the SHO to register the FIR is declined. However the cognizance of the offence is taken and the matter is adjourned for 25.11.2013 for presummoning evidence.
(Announced in open
Court on 01.10.13) (Navita Kumari)
MM/New Delhi
Hari Niwas Gupta Vs. M/s. Om Propmart (P) Ltd. & Ors. CC No.21/1/13 Page 6 of 5 CC No.21/1/13 01.10.2013 Present : Counsel Sh. Asim Naeem for complainant.
Vide separate order the prayer to direct the SHO to register the FIR is declined. However the cognizance of the offence is taken and the matter is adjourned for 25.11.2013 for presummoning evidence.
(Navita Kumari) MM/ND/01.10.13 Hari Niwas Gupta Vs. M/s. Om Propmart (P) Ltd. & Ors. CC No.21/1/13