Delhi District Court
Mohd Asghar Ali S/O Shri Abdul Ghafoor vs The Sho on 7 May, 2013
IN THE COURT OF ADDITIONAL SESSIONS JUGDGE03,
NORTH EAST DISTRICT, ROOM NO. 53, 2ND FLOOR,
KARKARDOOMA COURTS, DELHI
Cr R. no. 07/13
(arising out of complaint case no. 64/2010)
PS Khajoori Khas
Mohd Asghar Ali S/o Shri Abdul Ghafoor
R/o 825, Sheesh Mahal,
Azad Market, Delhi110006
......Revisionist
(Complainant)
Vs
1.The SHO, PS Khajoori Khas, Delhi
2.Ikramuddin S/o Shri Islamuddin
R/o E125, Sri Ram Colony,
Rajiv Nagar, Delhi110094. .......Respondents
Date of institution : 17.01.2013
Decision reserved on : 22.04.2013
Date of decision : 07.05.2013
JUDGMENT :
1.1 (introduction) : Petitioner / complainant filed complaint Cr R. no. 07/13 1 /6 u/s 200 Cr PC r/w 156 Cr PC seeking direction to register an FIR against respondent no. 2 and further directions to respondent no. 1 to investigate the FIR . In the body of complaint, the petitioner alleges allegations of section 420/468/471 IPC against the respondent no. 2. 1.2 However, the court of Sh. R. L. Meena, Metropolitan Magistrate by order dated 16.10.12 dismissed petitioner's application u/s 156 Cr PC, while narrating the facts of complaint and submission advanced on behalf of petitioner and reliance has been placed on M/s Skipper Beverages Pvt Ltd vs State 2001 IV AD Delhi 625 and Sukhi Wasi vs State of Utter Pradesh, 2008 Crl. L. J 472 as to under which circumstances directions for registration of FIR can be directed. Moreover, the Ld. Magistrate also took cognizance of facts of record summoned u/s 91 of Cr PC as well as the agreement took place between the parties, but ultimately the trial court came to the conclusion that neither custodial interrogation of respondent is required and there exists documentary record, its production or relevant evidence is in the hand of complainant, therefore, the magistrate took cognizance and list the case for complainant's evidence u/s Cr R. no. 07/13 2 /6 200 Cr PC.
1.3 However, the petitioner/ complainant is feeling aggrieved by the impugned order dated 16.10.12 that the Magistrate ought to have directed for registration of an FIR, the said order is being assailed in the revision petition. 2.1 (Plea in the revision petition) - The petitioner reiterates facts of complaint, stating that not only the petitioner sold his property on the allurement of respondent no. 2 to invest the money at some other land but also he executed two sale deeds in favour of respondent no. 2's son as the consideration amount was utilized by respondent no. 2 in buying the other properties. The respondent no. 2 has dishonestly and fraudulently manipulated the things either in respect agreement dated 04.03.09 in respect of property at village Pavi, Sadatpur, Loni or in respect of property at Sonia Vihar. The petitioner had also filed suit for declaration and mandatory injunction in the court of Additional District Judge, Delhi against respondent no. 2. There exist prima facie case of 420/468/471 IPC, it is a cognizable offence and it requires investigation of facts and documents, therefore the respondent no. 1 was required to be Cr R. no. 07/13 3 /6 directed for registration of an FIR and investigation against respondent no. 2 but Magistrate failed to exercise the discretion for registration of FIR and it has been declined, which is contrary to facts, law and material on record. When a prima facie cognizable offence is made out, FIR ought to be registered. The impugned order is required to be set aside as it suffers from vice of illegality and it has been dismissed on hypothetical ground.
2.2 During the arguments, similar contentions have been advanced that a thorough investigation is necessary as scrutiny of documents and facts. In Acharya Arun Dev Vs. State 2005 (2) JCC 897 it has been held by hon'ble High Court of Delhi that when complainant wanted to trace the cheated money and to recover the same, it could be possible only by the police investigation vis a vis to discover previous and subsequent conduct of the accused, for procuring the evidence the police investigation is necessary.
2.3 (Plea of State) - Whereas APP for State has opposed the revision petition, while fortifying its contentions for the reasons given by the Ld. Metropolitan Magistrate in the Cr R. no. 07/13 4 /6 impugned order that it is within the reach of complainant to produce and lead evidence, which does not require police investigation. It is submitted to dismiss the revision petition.
3. (Findings) The contentions of both the sides are assessed, in the light of material on record and the findings given by trial court in its order dated 16.10.12. Since, there is no illegality or irregularity or flaw in the impugned order, the revision petition is dismissed for the following reasons:
(i) The plain reading of complaint itself decipher that plaintiff is in possession of documentary record which may be evidence to be led by the complainant, therefore, the complainant is in possession of such record which may be produced by him.
(ii) Not only the allegation pertains to documentary record of transactions but also either adjustment of consideration amount or compromise between the parties, it is also within the knowledge, reach and production by the complainant.
(iii) The feature of case of Acharya Arun Dev (supra) is distinguishable from the features of present case as in Acharya Cr R. no. 07/13 5 /6 Arun Dev case there were allegations of trespass by removing the lock from the property and some other person was put into possession as well as there was refusal of return of money,
(iv) By reading the reasons (i) to (iii) above, the law laid down in M/s Skipper Beverages Pvt Ltd (supra) applies to facts of the case in hand.
4. Accordingly, revision petition stands disposed off. The revision petition is consigned to record room. Copy of this judgment be certified to the trial court along with TCR. Announced in the open court on (Inder Jeet Singh) Vaisakha 17, Saka 1935 Additional Sessions Judge03, North East District, KKD Courts, Delhi.
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