Delhi District Court
Kamal Kumar Luthra & Ors. vs . M/S Sana Realtors P. Ltd. & Ors. on 13 January, 2022
IN THE COURT OF SH. PRAYANK NAYAK
LD. MM-01: PATIALA HOUSE COURTS: NEW DELHI.
Case No. 14586/2019
Kamal Kumar Luthra & Ors. vs. M/s Sana Realtors P. Ltd. & Ors.
PS: Connaught Place
ORDER ON APPLICATION U/s 156(3) CrPC.
13.01.2022
Present: Ms. Komal Singh, Ld. Counsel for the complainant through VC.
No clarification is required.
Put up for orders today itself at 3.00 PM.
(PRAYANK NAYAK)
MM-01/PATIALA HOUSE COURTS,
NEW DELHI/13.01.2022
At 3.00PM
Present: None.
1.Vide this order, I shall dispose of an application u/s 156(3) CrPC filed on behalf of the complainant.
2. The allegations in brief are that the complainant had booked flats/units by executing a buyer agreement with the proposed accused company as well as their authorised representatives(accused persons). It is the case of the complainant that they have been obtained all the necessary approvals for the building plans. On the basis of the said assurances, the complainant went ahead with the booking of units and made major payments to the proposed accused. However, no possession has been handed over to the complainant till date and the said project does not have all the necessary permission and is illegal.
CC No. 14586/2019 Kamal Kr. Luthra & Ors. vs. M/s Sana Realtors & Ors. Page No. 1 of 3.
3. As per the ATR filed by the police, no cognizable offence is made out and that the project is ready for possession. It is also stated that the issuance of occupation certificate was delayed only on account of frivolous objections by the complainant.
4. Ld. counsel for the complainant has argued that the accused persons did not have the relevant sanction for the project and had demanded the balance payment alongwith exorbitant charges despite the structure being incomplete and inhabitable. She has further stated that the material on record clearly shows that the accused persons have misrepresented the state of the project for the purpose of obtaining money from the complainant and hence offence of cheating is made out. In support of her contention, she has relied upon the judgment of Hon'ble Supreme Court in the case titled State of Gujarat vs. Mohan Lal J. Porwal and Kamla Devi Aggarwal vs. State of West Bengal.
5. Arguments heard. Record perused.
6. At this stage, it would be appropriate to discuss the law pertaining to the application u/s 156(3) CrPC. In the matter of "M/s Skipper Beverages Pvt. Ltd. Vs. State", 2002 Crl. LJ NOC 333 (Delhi), it has been held as under: -
"7. It is true that Section 156(3) of the Code empowers to a Magistrate to direct the police to register a case and initiative 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 order under Section 156(3) of the Code. The discretion ought to be exercised after proper application of the mind and only in those cases where the Magistrate is of the view that the nature of allegations is such that the complainant himself may not be in CC No. 14586/2019 Kamal Kr. Luthra & Ors. vs. M/s Sana Realtors & Ors. Page No. 2 of 3. position to collect and produce evidence before the Court and interests of justice demand that the police should step into held the complaint."
7. Further, in the matter of "Ravindra Kumar Vs. State (Govt. of NCT of Delhi) & Another" 2012 VIII AD (Delhi) 403, it has held as under: -
"Remedy under Section 156(3) CrPC is a discretionary one as the provision proceeds with the word 'may'. The Magistrate is required to exercise his mind while doing so and pass orders only if he is satisfied that the information reveals commission of cognizable offence/offences and also about necessity of police investigation for digging out of the evidence neither in possession of the complainant nor can be procured without the assistance of the police."
8. Coming to the facts in hand, it is observed that all the documents and evidence are in custody of the complainant and nothing is out of reach of the complainant, which requires special investigation through police. The recourse of inquiry by police is also available u/s 202 Cr.P.C. Identity of the proposed accused is also known to the complainant. Hence, in view of the legal position stated above, this Court does not find sufficient grounds to allow the present application. The judgments relied upon by the Ld. Counsel for the complainant do not deal with the application u/s 156(3) Cr.PC and hence not applicable. Accordingly, the application of the complainant u/s 156(3) CrPC is dismissed. The complainant is given opportunity to prove his case by adducing CE.
Put up for PSE on 29.04.2022.
(PRAYANK NAYAK) MM-01/PATIALA HOUSE COURTS, NEW DELHI/13.01.2022 CC No. 14586/2019 Kamal Kr. Luthra & Ors. vs. M/s Sana Realtors & Ors. Page No. 3 of 3.