Delhi District Court
M/S Amy Construction Pvt. Ltd vs Sachin Sen Manchanda on 20 April, 2012
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH DISTRICT) & ASJ/I/C (SOUTH & SOUTHEAST):
SAKET NEW DELHI
Criminal Revision No. 115/2012
ID No.: 02406R0065622012
M/s Amy Construction Pvt. Ltd.
Regd. Office 140/A/1, Kishan Garh,
Aruna Asaf Ali Marg, JNU Road,
Opp. Bava Potri, Near Atithi Banquet Hall,
Vasant Kunj, New Delhi 110070.
Also At: A189, Okhla Indl. Area PhaseI
New Delhi 110020. ...... Revisionist
Versus
1. Sachin Sen Manchanda
s/o Sh. Yogendra Sen Manchanda
R/o C471, Defence Colony,
New Delhi.
2. Shalini Manchanda
d/o Sh. Yogendra Sen Manchanda
R/o C471, Defence Colony,
New Delhi.
3. Yogendra Sen Manchanda
s/o not known
R/o C471, Defence Colony,
CR No.115/12 M/s Amy Construction P. Ltd. Vs. Sachin Sen Manchanda & ors. Page 1 of 10
New Delhi.
4. State
Through Public Prosecutor ...... Respondents
Instituted on: 24.03.2012
Judgment reserved on: 20.04.2012
Judgment pronounced on : 20.04.2012
J U D G M E N T
1. This criminal revision petition is directed against order dated 05.03.2012 passed by Ms. Mona Tardi Kerketta, Metropolitan Magistrate 08 (SouthEast) in criminal complaint case no. 404/1 of 2011, whereby the application of the petitioner seeking a direction to the police for investigation under Section 156(3) Cr.P.C. was declined. Vide the same order, learned Magistrate decided to take cognizance and called upon the petitioner to adduce presummoning evidence under Section 200 Cr.P.C. and listed the matter accordingly.
2. On notice, respondent no.4 State has appeared to assist.
3. I have heard Sh. Vikas Pahwa, Sr. Advocate along with Sh. Sanjay Rathi, advocate for the petitioner and Sh. R. S. Negi, Additional Public Prosecutor for the State. I have gone through the record with their assistance.
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4. The criminal complaint was presented by the petitioner on 15.11.2011 alleging offences punishable under Sections 418/420/423/467/468/471/506/120B/34 IPC having been committed by respondents no.1 to 3 who have been shown in the array of parties before the learned Magistrate as the prospective accused.
5. The petitioner claims to have purchased property no. 1 and 2, Mor Pocket, situated at the corner of Ring Road and road leading to Village Garhi, Lajpat NagarIV, New Delhi comprising area of 351.65 sq. meters each for consideration vide registered sale deed dated 18.01.2011 from Sh. Pawan Solanki son of Sh. C. B. Solanki. The title of the property in question is stated to be traceable to respondents no.1 and 2 respectively with the allegations that they had purchased the said plot from Delhi Development Authority (DDA) in open public auction on 31.03.1994. It is alleged by the petitioner that respondents no.1 and 2 had applied for conversion of the said plots from lease hold to freehold sometime in March, 1996 and at that stage had submitted with their respective applications to DDA fabricated copies of documents that purported to be CR No.115/12 M/s Amy Construction P. Ltd. Vs. Sachin Sen Manchanda & ors. Page 3 of 10 occupancy certificates issued by Municipal Corporation of Delhi (MCD). It is the case of the petitioner that acting on the false representations made by respondents no. 1 and 2, DDA had allowed the prayer for conversion of the said properties into free hold and thus executed conveyance deed in May, 1996. It is further the case of the petitioner that subsequently, it came to light that the plots in question had never been built upon and had remained vacant lands. It appears that under the policy of DDA, conversion from lease hold to free hold would not have been permissible in case of property in which no superstructure had been raised. Against the back drop of such revelation, DDA appears to have gone ahead to cancel the conveyance deed. It appears that in the meantime the properties had been sold by respondents no.1 and 2 in favour of M/s Golden Tourist Resorts & Developers Ltd. and M/s Golden Project Ltd.. The cancellation of conveyance deed by DDA eventually became subject matter of litigation between respondents no.1 and 2 on one hand and the said other party (with whom they had entered into the transaction of sale) on the other. While efforts appear to have been made by respondents no.1 and 2 to have the CR No.115/12 M/s Amy Construction P. Ltd. Vs. Sachin Sen Manchanda & ors. Page 4 of 10 conveyance deed revived, the said transferees M/s Golden Tourist Resorts & Developers Ltd. and M/s Golden Project Ltd. appear to have sold the property further on the basis of documents executed (for consideration) and duly registered.
6. The petitioner avers cheating and forgery and use of forged documents, referring in this context to occupancy certificates that had been relied upon for getting the property converted into free hold alleging, interalia, that respondents no.1 and 2 have been laying false claim over the property in question in a deceitful and mischievous manner knowing fully well that they had no right, title or interest subsisting in the property any further and to have misrepresented only to make out money by way of blackmailing and extortion.
7. The learned Magistrate on the complaint being filed, called for status report from SHO PS Amar Colony in as much as it had been alleged that a complaint had been earlier lodged with the police with no action taken thereupon. After taking on record the status report, she proceeded to consider the prayer for directions under Section 156(3) Cr.P.C., but declined the same vide order dated 05.03.2012.
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8. When a criminal complaint is filed before a Magistrate and upon perusal, it is found to be disclosing cognizable offence having been committed, two courses are open to the Magistrate. He may chose to inquire into the complaint by taking cognizance in exercise of his powers under Section 190 Cr.P.C. and proceed to inquire into it in accordance with the procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may refer the complaint to police under Section 156(3) Cr.P.C. for investigation. In the latter case, the Magistrate having given such directions would stay his hand till the report under Section 173 Cr.P.C. is submitted by the investigating police, on which further process of law would follow.
9. The law governing the choice to be exercised from amongst the two options has been more or less settled. The Hon'ble Delhi High Court in the judgment M/s Skipper Bevrages Vs. State 2001(2) JCC (Delhi) 67 held that "a Magistrate must apply his mind before passing an order under Section 156(3) Cr.P.C. and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or CR No.115/12 M/s Amy Construction P. Ltd. Vs. Sachin Sen Manchanda & ors. Page 6 of 10 evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts".
10.To the same effect are the observations of the Hon'ble High Court of Allahabad in the judgment titled as Gulab Chand Upadhyaya Vs. State of UP 2002 Crl. L. 2907. The use of the word "may" in Section 156(3) Cr.P.C. in contradistinction to the word "shall" in Section 154 Cr.P.C. clearly indicates that the Magistrate has the discretion to refuse registration of FIR.
11.Thus, the Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in a routine and casual manner. Criminal law is not expected to be set into motion on the mere asking of a party. There has to be substance in the complaint filed and it is only if it appears that the allegations are serious enough and establish the commission of a cognizable offence requiring thorough investigation by the police, that an FIR should be ordered to be registered.
12.The power under Section 156(3) Cr.P.C no doubt exists. But the same is not to be exercised in routine on the mere filing of a complaint alleging that police has failed to register an FIR. In CR No.115/12 M/s Amy Construction P. Ltd. Vs. Sachin Sen Manchanda & ors. Page 7 of 10 fact, Hon'ble Supreme Court of India in Aleque Padamsee Vs. Union of India 2007 Crl. L.J. 3729(SC) held that 'when the information is laid with the police, but no action in that behalf is taken, the complainant can under section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code.'
13. The counsel for the petitioner has referred to Srinivas Gundluri & ors Vs. Sepco Electric Power Construction Corporation & ors [(2010) 8 SCC 206] to contend that the learned Magistrate ought to have directed the police to investigate since complaint discloses cognizable offence. Noticeably, even in para 23 of the said judgment relied upon by the petitioner it has been observed that the Magistrate "may" direct the police for investigation, if complaint discloses cognizable offence.
14.In the given facts and circumstances, I find no impropriety or illegality in the view taken by the learned Magistrate. She is not wrong in observing that all the facts and circumstances are CR No.115/12 M/s Amy Construction P. Ltd. Vs. Sachin Sen Manchanda & ors. Page 8 of 10 within the knowledge of the complainant and that identity of the various players involved is also well known. The submission of the counsel for the petitioner that he does not have access to the entire material is not correct. The evidence that will be required to bring home the case against the opposite party may not be within the physical control/possession of the complainant. Nonetheless, the same essentially being part of the official record cannot be said to be inaccessible. The complainant can always secure the production of such documentary evidence by obtaining requisite process from the inquiring magistrate.
15.The fact that the prayer under Section 156(3) Cr.P.C. has been declined does not foreclose the possibility of investigation from the police. If any such need were to arise with reference to a particular aspect (as in the context of the averment that the original files of DDA have been rendered untraceable), such investigation can always be prayed for/ordered when the matter enters the stage of Section 202 Cr.P.C.
16.In above facts and circumstances, I do not find any good reason to interfere in the judicial discretion exercised by the learned Magistrate.
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17.The revision petition is, therefore, dismissed.
18.The trial court record along with copy of this judgment be sent back.
19. File of the revision petition be consigned to Record Room.
Announced in open Court today
on this 20th day of April, 2012 (R.K. GAUBA)
ASJ/I/C (South & South East)
Saket/New Delhi.
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