Delhi District Court
Anil Dua vs State on 1 May, 2014
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Revision Number: 16/2014
Unique ID No. 02406R066442014
Anil Dua,
Son of Om Prakash Dua,
Resident of Blaklockevagen, 10 19164,
Sollentuna, Sweden. ......................................Revisionist
Versus
State ......................................Respondent
Date of institution of Revision : 18.03.2014
Date on which case was received on
Transfer by this Court : 23.04.2014
Date of conclusion of arguments : 23.04.2014
Date of Order : 01.05.2014
Memo of Appearance
Sh. Jayant Bhatt, learned counsel for Revisionist.
Sh. Inder Kumar, learned Addl. P.P. for State.
ORDER
1 Revisionist Anil Dua has taken exception to the order dated 05.02.2013 whereby his request for ordering registration of FIR has been declined and he has been asked to proceed under Chapter XV of Cr.P.C.
CR No. 16/14 Anil Dua Vs. State Page 1 of 52 Facts lie in a very constricted compass.
3 Applicant, a Sweden National of Indian origin, came across one advertisement of M/s Unitech Limited, a company, inter alia, actively engaged in real estate business, construction, township development. Such company had come up with a project titled Unitech Habitat. Applicant/Revisionist was given a rosy picture about such project and he was allured to invest in the same. He and his wife accordingly invested in such project and were allotted Apartment No. 001, Floor-G, HBIN Tower-II, Unitech Habitat, Plot No. 9, Sector-Pi-II, Greater Noida, UP. Allotment letter was issued on 20.09.2006 and revisionist was assured that he would be granted possession within 36 months of signing of allotment letter. He made payment of Rs. 73,03,530/- out of determined sale consideration of Rs. 81,06,258/- but, till date, no substantial construction had been raised much less handing over of the possession of apartment. Feeling cheated, he moved application u/s 156 (3) Cr.P.C. for investigation and registration of case.
4 Learned Trial Court, vide order dated 05.12.2013 directed SHO, PS Saket to file action taken report. Status report was filed and as per such report, matter essentially fell under the jurisdiction of Noida and, therefore, it was requested that the complaint may be filed.
5 Learned Trial Court ordered the complainant to lead evidence under Chapter XV of Cr.P.C. and did not accede to the request of registration of FIR. It was held that all the relevant documents were already available with the complainant and no evidence was required to be collected by the police.
CR No. 16/14 Anil Dua Vs. State Page 2 of 56 Sh. Jayant Bhatt, counsel for complainant has vehemently contended that police did not discharge its constitutional duties despite the fact that material on record clearly indicated commission of cognizable offences and, therefore, in view of the previous pronouncements, it was incumbent on the part of Trial Court to have directed for registration of FIR.
7 I have seen the impugned order and it is evident that learned Trial Court has considered various judgments i.e. Radha Vs. State 2011 (2) JCC 1414; Dr. Rajni Palriwala Vs. Dr. D. Mohan & Anr. 2009 (3) JCC 1896; Amit Khera Vs. Govt. of NCT of Delhi & Ors. 2010 (4) JCC; Lalita Kumari Vs. State, Writ Petition (Criminal) No. 68 of 2008 ( DOD 12/11/2013); Skipper Beverages Pvt. Ltd. Vs. State 2001 (92) DLT 217 and Md. Saleem Vs. State Crl. M.C. 3601/2009. Admittedly, any such Magistrate is required to exercise his discretion in a very judicious manner. Such power is not to be exercised in a mechanical manner. The police is normally directed to register FIR only when it is found that it may not be possible for complainant to collect and produce the evidence before the Court.
8 Guidelines have been issued by Hon'ble High Court of Delhi in the case of Subhkaran Luharuka & Anr. Vs. State & Anr. 2010 (3) JCC 1972 and even according to such guidelines, court needs to be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which was neither in the possession of the complainant nor could be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter was such which called for investigation by a State agency.
9 Even if allegations made in the complaint disclose commission of cognizable offence, in such eventuality also, Magisterial Court is not bound CR No. 16/14 Anil Dua Vs. State Page 3 of 5 to direct investigation. Complainant cannot, as a matter of right, claim that since he has been able to disclose commission of cognizable offence, court has no option but to ask police to register FIR. Similar proposition came up for consideration before the Apex Court in Raghu Raj Singh Rousha V/s Shivam Sundaram Promoters Private Limited & Another, (2009) 2 Supreme Court Cases 363 wherein it was held that a Magistrate was not bound to exercise his jurisdiction under Section 156(3) Cr. P. C. The Court held that where the Magistrate, after applying the mind, comes to the conclusion that the dispute was a private dispute in which police investigation was not necessary, he may direct examination of the Complainant and his witnesses in order to initiate and complete the procedure laid down under Section XV of the Code.
10 Undoubtedly, complainant is genuinely aggrieved as despite investing such a huge amount, apartment has not been allotted to him. Any such builder is required to stick to the contractual terms and cannot take the things for granted. It is becoming a harsh reality that people in real estate are befooling the investors to the hilt and making merry with their hard-earned money. Without even laying the foundation in one project, another pre-launch project gets underway in a jiffy without there being all the necessary clearances. There is no regulatory body over them to noose them and, therefore, they are exploiting the situation. Therefore, justice delivery system- whether police or court- should act with alacrity in such type of matters where innocent people feel duped.
11 Be that as it may, no real purpose would be served to ask police to carry out investigation which has not done anything substantial in the matter perhaps assuming that Delhi Courts have no jurisdiction.
CR No. 16/14 Anil Dua Vs. State Page 4 of 512 In such a situation, when the complainant has all the documents with him and can always satisfy the Court about the competency of jurisdiction of courts at Delhi and when there is no requirement of any specialized investigation as such, the complainant would be rather better placed in leading the evidence before the Court instead of going back to police.
13 It has already been noted that revisionist Anil Dua is based in Sweden and it may not be easy for him to appear before the Trial Court on each and every date. In this regard, counsel for complainant can always move appropriate application before the Trial Court for necessary exemption. Court can also find out whether it would be possible to record his pre- summoning evidence using the facility available in Video Conferencing Room in Saket Court Complex. Suffice it to say that even if the FIR was to be registered, complainant would have been required to provide assistance to the police. I need not give any further direction in this regard but it is expected that Court would give dates keeping in mind the convenience of the complainant as well and may also grant exemption from his personal appearance wherever possible.
14 In view of my foregoing discussion, I do not find any merit in the Revision Petition. Same is accordingly dismissed.
15 A copy of this order be sent to learned Trial Court along with the trial court record and file related to Revision Petition be consigned to the Record Room.
Announced in the open Court On this 1st day of May 2014. (MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CR No. 16/14 Anil Dua Vs. State Page 5 of 5