Delhi District Court
M/S Devidayal Builders vs State on 25 May, 2017
IN THE COURT OF SHRI N. K. MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 07/16
In the matter of:
M/s Devidayal Builders
Through
Sh. Raj Kumar Aggarwal
r/o H. No. 221, Sector 15A,
Noida201301 .....Revisionist.
VERSUS
1 State
Through Commissioner of Police,
Police Headquarters, N. Delhi.
2 Growth Techno Projects Limited
Having its registered office at
No. 50, !st floor, Nehru Bazar, Paharganj,
New Delhi.
Through its Director Mr. Amit Parwal
& Other Directors.
3 Sh. Sita Ram Bhandar
Having its registered office at
(Parveen Singh)
CR No. 07/16 Spl Judge, CBI02, NDD
1 of 10 16.03.2016
No.1, Doctor Lane, Gole Market
Throuth its Trustee namely
Sh. S. K. Birla & Other Trustees
C/o, 9/1 R. N. Mukargi Road, Birla Building
Kolkata.
4 Mandir Sitaramji Trust
Having its Registered Office at
No. 1 Doctor Lane, Gole Market,
New Delhi.
Through Sh. S. K. Birla.
5 Peerless General Finance & Investment Ltd.
Having its registered office at
No. 3 Esplanade East,
Kolkata700069
Through its Directors namely
i S. K. Roy
ii P. P. Rai
iii Bhargav Lehri
6 O. P. Khaitan
C/o B1, Defence Colony,
New Delhi110024
7 Subhalakhmi Mercantile Limited,
Having its office at
B2 RZ 153 C,
(Parveen Singh)
CR No. 07/16 Spl Judge, CBI02, NDD
2 of 10 16.03.2016
Aruna Asaf Ali Road, Kishan Ganj,
Through its Director. .....Respondent
Date of Institution : 09.12.2016.
Date of Arguments : 25.05.2017.
Date of Decision : 25.05.2017.
REVISION AGAINST IMPUGNED ORDER DATED 04.07.2016
PASSED BY LEARNED MM, NEW DELHI.
ORDER
Vide this order I shall decide the revision petition against the order dated 14.7.2016 passed by Ld. MM.
2 Aggrieved by the order, present revision petition has been filed on the ground that the order passed by ld. MM is against the settled position of law. The order is perverse and not sustainable in law. The order has been passed without appreciation of law. The ld. Trial court failed to appreciate that the affidavit in support of the application U/s 156(3) Cr. P. C could have been directed to be filed during the pendency of the matter. But there is no provision in the Code of Criminal Procedure for filing the affidavit along with the aplication U/s 156 (3) Cr. P. C. Ld. Trial court failed to appreciate that the application U/s 156 (3) Cr. P. C should have been treated as (Parveen Singh) CR No. 07/16 Spl Judge, CBI02, NDD 3 of 10 16.03.2016 complaint U/s 200 Cr. P. C. It is prayed that the order dated 4.7.2016 be set aside.
3 I have heard learned counsel for the revisionist, Ld. Counsel for respondent and Ld. PP for the State.
4 Perusal of the trial court record reveals that petitioner has filed an application U/s 156 (3 ) Cr. P. C. It is submitted that complainant was engaged in the business of development and construction of properties. One Sh. Acharya Arun Dev ( since deceased ), in connivance with respondent no. 3 and 4 represented to the complainant that they were trustees of respondent no. 3 and were entitled to a piece of land measuring around 68 acres situated at village Karkardooma, Tehsil Shahdara for development and construction of a housing projects namely, 'Growth Park' on the said land. Representative of the complainant entered entered into a development collaboration agreement dated 15.7.197 with respondents no.3 & 4 on the misrepresentation of Sh. S. K. Birla and Sh. L. N. Birla, according to which the complainant had absolute right to develop the aforesaid piece of land. As a consideration for development of the piece of land, the complainant was supposed to be given 4,31,200 sq. ft of built up area after completion of the project. At the time of entering into the agreement, the complainant paid (Parveen Singh) CR No. 07/16 Spl Judge, CBI02, NDD 4 of 10 16.03.2016 Rs. 85 lacs to Ms. Reeta Jain and O. P. Khaitan and an amount of Rs. 1.55 Crore was kept in a escrow account with respondent no.6 for Sh. S. K. Birla. The said amount was not released to the complainant despite his asking. On 26.5.1989, Acharya Arun Dev executed an M.O.U., whereby developments rights of the complainant were transferred to him. Achraya Arun Dev in connivance with respondent No. 3, respondent no.4 Sh. S. K. Birla and Sh. L. N. Birla entered into an agreement dated 7.8.89 with respondent no. 5 whereby he agreed to sell, transfer and assign salable FAR in the buildings to be constructed in the aforesaid project under Development Collaboration Agreement with respondent no. 5. On 16.10.90 respondents no. 3 & 4 entered into an MOU with respondent no.2 whereby respondents agreed to transfer rights in the project land to respondent no. 2. The respondent no.1 entered into an MOU dated 25.4.2003 with complainant, Acharya Arun Dev and respondent no. 2 This MOU dated 25.4.2003 was lateron converted into an agreement dated 8.8.2005. The complainant has thus alleged cheating and fraud by the respondents. The complainant lodged a complaint with PS Mandir Marg against the respondents but no action was taken by the police. Aggrieved by inaction of SHO, PS Mandir Marg, the complainant lodged a complaint with DCP, Parliament Street but no action was taken on this complaint. Therefore, the complainant approached the court by way of (Parveen Singh) CR No. 07/16 Spl Judge, CBI02, NDD 5 of 10 16.03.2016 application U/s 156 (3) Cr. P. C. 5 Perusal of file reveals that the ld. Trial court calls for the status report and the status report is filed by the police. In the status report it is categorically mentioned that it is the main grievance of the complainant that he had invested Rs. 85 lacs for getting the land free from occupiers but no proof of such payment was filed with the complaint. It is also mentioned that as per agreement dated 15.7.87 it was the obligation of the owner of the land to pay the encroaches and not the obligation of Devi Dayal Builders and the escrow amount of Rs. 1.55 Crore was deposited with Sh. O. P. Khaitan by M/s SML. It is also mentioned that this agreement conveys that the complainant had complete knowledge of the facts and there was no mis representation. The entire dispute among the parties is of civil nature. Nothing has been developed on the land and none of the agreement among the parties could be implemented for want of requisite sanction. It is also mentioned that no cognizable offence has been committed within the jurisdiction of P. S. Mandir Marg.
6 The law U/s 156 (3) Cr. P. C. has been settled In the matter of "M/s. Skipper Beverages Pvt. Ltd. Vs. State"
2002 Crl. LJ NOC 333 (Delhi), it has been held as under: "Section 156 empowers Magistrate to direct police to register (Parveen Singh) CR No. 07/16 Spl Judge, CBI02, NDD 6 of 10 16.03.2016 case and initiate investigation but this power has to be exercised judiciously and not in mechanical manner. Those cases where allegations are not very serious and complainant himself is in possession of evidence to prove allegation, there should be no need to pass order under Section 156".
In the case of "Sukwasi Vs. State of Uttar Pardesh" 2008 Cri.L.J. 472, Division Bench of Hon'ble High Court of Allahabad has held that merely because a complaint discloses a cognizable offence, application under Section 156(3) of The Code of Criminal Procedure, 1973 is not bound to be allowed. The following observations are relevant : "22. Applications under Section 156(3) of Code of Criminal Procedure, 1973 are now coming in torrents. Previsions under Section 156(3) of Code of Criminal Procedure, 1973 should be used sparingly. They should not be used unless there is something unusual or extra ordinary like miscarriage of justice, which warrants a direction to the police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) of Code of Criminal Procedure, 1973.
23. The reference is, therefore, answered in the manner that it is (Parveen Singh) CR No. 07/16 Spl Judge, CBI02, NDD 7 of 10 16.03.2016 not incumbent upon a Magistrate to allow an application under Section 156 (3) of Code of Criminal Procedure, 1973 and there is no such legal mandate. He may or many not allow the application in his discretion".
In the matter of "Ravindra Kumar Vs. State (Govt. of NCT of Delhi) & Anr." 2013 VIII AD (DELHI) 403 of Hon'ble High Court of Delhi has held that : "04. Section 156(3) empowers the Magistrate to refer and direct the police to investigate the cognizable offence. It is however not necessary to refer every complaint filed under Sectin 200 to the police for investigation under Section 156 (3) of Cr.P.C. "05. Remedy under Section 156 (3) Cr.P.C 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 evidence neither in possession of the complainant nor can be procured without the assistance of the police. The complainant, as a matter of right, cannot insist that the complaint case filed by him/her should be directed in every eventuality to the police for (Parveen Singh) CR No. 07/16 Spl Judge, CBI02, NDD 8 of 10 16.03.2016 investigation."
In the matter of "Zubair UlAbidin (Dr.) Vs. State (NCT of Delhi)"
2014 III AD (DELHI) 61 of Hon'ble High Court of Delhi has held that : "12. Thus, the magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the complaint filed and it is only if it appears that the allegations are serious enough and establish the commission of cognizable offence required thorough investigation by the police an FIR should be ordered to be registered."
In judgment titled as "Gulab Chand Vs. State" 2002 Crl. L.J. 2907, it is held as under: " The scheme of Cr.P.C and the prevailing circumstances require that the opinion to direct the registration of the case and its investigation by the police should be exercised where some 'investigation' is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation.
xxx xxx xxx
(Parveen Singh)
CR No. 07/16 Spl Judge, CBI02, NDD
9 of 10 16.03.2016
But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no 'investigation' would normally be required and the procedure of complaint case should be adopted."
6 In the present case as no proof of payment has been annexed by the petitioner with the complaint filed before the ld. Trial court and taking into consideration that entire dispute among the parties is of civil nature and all the evidence is in the control of the petitioner, I am of the view that there is no necessity of registration of FIR in the present case. Ld. MM has rightly dismissed the application U/s 156 (3) Cr. P. C and passed reasoned order. Revision petition is without any merit and the same is dismissed.
Trial court record be sent back with copy of this order. Revision file be consigned to the record room.
Announced in Open Court (N.K. Malhotra)
on this 25th day of May,2017 ASJ/Spl. Judge, CBI02,
New Delhi District, PHC.
(Parveen Singh)
CR No. 07/16 Spl Judge, CBI02, NDD
10 of 10 16.03.2016