Delhi District Court
Ghanshyam Dass vs The State on 18 January, 2023
IN THE COURT OF MS. VRINDA KUMARI,
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
REVISION PETITION NO. 40 OF 2022
IN THE MATTER OF
Ghanshyam Dass
S/o Sh. Chatter Singh,
R/o 79-B, First Floor,
Savitri Nagar, New Delhi ........ Revisionist
Versus
1. The State
2. Mohd. Sarfaraz Khan,
S/o Sh. Shamsuddin,
Prop. of M/s S. K. Builders & Developers,
Residence cum Office at 271, Hauz Rani,
Malviya Nagar, New Delhi. ........ Respondents
DATE OF INSTITUTION : 07.02.2022
DATE OF RESERVING ORDER : 06.12.2022
DATE OF PRONOUNCEMENT : 18.01.2023
ORDER
1. Vide this Order, I shall dispose of the present revision petition against Impugned Order dated 17.01.2022 in Complaint Case No. 1360/2021 titled as Ghanshyam Dass vs Mohd. Sarfaraz Khan pronounced by Ld. MM-02 (South) vide which the application u/s 156(3) Cr.P.C. of the revisionist-complainant was dismissed.
CR No. 40/2022 Ghanshyam Dass Vs The State NCT of Delhi & Anr. 18.01.2023 Page No. 1 of 9
2. Grievance of the revisionist-complainant is that despite payment of consideration amount in sum of Rs 55 Lacs out of total consideration amount of Rs 58 Lacs in respect of two floors / flats of 80 sq. yds. each on the upper ground floor and first floor in property bearing no. 72, Savitri Nagar, New Delhi - 110017 in terms of Agreement to Sell notarized on 11.12.2020, respondent Mohd. Sarfaraz Khan neither completed the construction nor executed Sale Deed nor gave actual physical possession of the said flats to him. It is submitted that possession was given only on paper. It is also submitted that the revisionist is ready to pay the balance amount of Rs 03 Lacs immediately on completion of the construction and execution of sale documents.
3. Despite complaints dated 08.07.2021 and 07.08.2021 addressed to SHO PS Malviya Nagar, no FIR was registered against the respondent. Complaint was also dispatched to DCP (South) which was received on 20.07.2021. The revisionist-complainant, therefore, filed complaint case u/s 200 Cr.P.C. r/w application u/s 156 (3) Cr.P.C.
4. After hearing submissions of the revisionist- complainant, Ld. Trial Court dismissed the application u/s 156(3) Cr.P.C. vide the Impugned Order dated 17.01.2022. It has been held by Ld. Trial Court as follows :
"7. In the present case CR No. 40/2022 Ghanshyam Dass Vs The State NCT of Delhi & Anr. 18.01.2023 Page No. 2 of 9 also there is no justification for directing the police for registering the FIR, request u/s 156(3) Cr.P.C. is declined, as all the facts and circumstances are within the knowledge of the complainant including identity of the alleged persons and documentary evidence, as well as the names and addresses of the concerned witnesses. Thus, there is no ground on which the assistance of the police is required. Further, if at any stage the court is of the opinion that investigation in the matter is required, the court will be within its power to order investigation u/s 202 Cr.PC, and this order shall in no way bar such investigation at latter stage.
8. Put up for pre-
summoning CE on 23.05.2022."
5. Aggrieved with the above-said Order of Ld. Trial Court, the revisionist has filed the present revision petition. In the revision petition, however, the revisionist has reproduced the facts of the case but has omitted to mention the grounds on the basis of which the impugned Order has been assailed. On 14.02.2022, the revisionist placed on record an additional copy of the revision petition in which grounds were specifically mentioned.
6. Contention of the revisionist-complainant is that Ld. Trial Court failed to appreciate that owner of the property, namely, Smt. Rajeshwari Devi with whom respondent had entered into a CR No. 40/2022 Ghanshyam Dass Vs The State NCT of Delhi & Anr. 18.01.2023 Page No. 3 of 9 Collaboration Agreement stated that construction of the entire building had not been completed by the respondent and, therefore, she did not issue No Objection Certificate for the purpose of sale of the two flats in question to the revisionist-complainant. It is further submitted that incomplete construction work and failure of respondent to hand over the physical possession of the said flats to the revisionist-complainant or to execute sale documents despite taking an amount of Rs 55 Lacs from him amounts to cheating and misappropriation of funds.
7. The respondent Mohd. Sarfaraz has opposed the present revision petition on the ground that the present case is a civil dispute.
8. I have heard detailed arguments and have perused the records carefully including the Trial Court Record as well as the photographs and video recording of the said property filed by revisionist.
9. Respondent Mohd. Sarfaraz (builder) entered into a Collaboration Agreement (undated) with one Mrs. Rajesh W/o Late Sh. Balbir Singh for constructing and developing plot / property bearing no. 72, measuring 80 sq. yds., Savitri Nagar, New Delhi- 110017 in the year 2020. Mrs. Rajesh is the owner of the said property. As per this Agreement, owner's share after construction of the plot was entire stilt floor for parking / ground floor, entire CR No. 40/2022 Ghanshyam Dass Vs The State NCT of Delhi & Anr. 18.01.2023 Page No. 4 of 9 second floor and entire third floor with terrace. The developer / builder's share was entire upper floor and entire first floor. The relevant recitals of the said Collaboration Agreement are as follows :
"10. That the Developer/Builder/Second Party have assured the First Party/Owner that he will complete the construction of the "Said Property" in all respects within the stipulated period, except the reasons such as of any natural calamity viz., earthquakes, war riots, accidents etc.
11. That the Developer/Builder/Second Party shall intimate to the First Party/Owner or his nominees(s) the fact about the completion of the re-developed property. And Developer/Builder /Second Party is free to book of its (Developer/Builder/Second Party) share at any time after this agreement. However the builder shall deliver/hand over the possession of the his share to the intending buyer(s) and shall transfer the same after handing over the possession of Owner allocation to the Owner first.
12. That it is hereby agreed understood acknowledged and so recorded that the Second Party/Developer shall be free and entitled to Book, allot flat/s, falling to his share immediately after execution of this agreement. The Second Party/Developer shall be exclusively entitled to Second Party's/developer's allocation/ CR No. 40/2022 Ghanshyam Dass Vs The State NCT of Delhi & Anr. 18.01.2023 Page No. 5 of 9 share in the building with the exclusive rights to sell, transfer or deal with or to dispose off the same and to make booking, to receive advance payment and part payment from the intending buyer(s), enter into agreement(s) to sell the proposed flat in the Second Party's/ developer's allocation/share without any right, claim or interest therein what so ever of the Owner and the Owner shall be exclusively entitled to deal with the Owner allocation without any reservation form the Second Party/Developer."
10. Thus, the respondent was free to book entire upper floor and entire first floor immediately after execution of the Collaboration Agreement. He was exclusively entitled to his share with exclusive rights to sell, transfer, dispose of, book, receive advance payment and part payment from intending buyers. He had a right to enter into Agreement to Sell in respect of his share. However, it was also stipulated that the possession of his share could be delivered to the intending buyers only after first handing over the possession of the area falling in owner's share.
11. There are claims and counter claims regarding completion of work of the two flats in question. The respondent has submitted that the revisionist kept on changing his demands related to fixtures and also demanded construction of furniture. He further submitted that he would be able to complete the construction only if CR No. 40/2022 Ghanshyam Dass Vs The State NCT of Delhi & Anr. 18.01.2023 Page No. 6 of 9 he is allowed entry in the said property.
12. Three short video footages placed on record by the revisionist show that they were taken when the work like white- wash, installation of fans etc. was still going on in the said flats. The floors and walls appear to be complete by and large. The doors and decoration work are also seen in the video footage. The fixtures, however, had still not been installed when the said videos were made.
13. It is, however, not disputed that the construction of the entire property including owner's share is not complete even though structure has been raised. Owner Mrs. Rajesh is reluctant to issue NOC in respect of the two flats in question as construction of her share and the entire building is not complete.
14. The issue before this Court is whether or not such circumstances require registration of FIR and whether the evidence in the present case is beyond the reach of the revisionist.
15. The identity of the proposed accused / respondent / builder Mohd. Sarfaraz is not disputed. There is also no dispute regarding payment of a sum of Rs 55 Lacs by the revisionist to the respondent / builder. It is also not disputed that the construction of the entire building is incomplete. All the documentary evidence is within the reach of the revisionist-complainant. No custodial CR No. 40/2022 Ghanshyam Dass Vs The State NCT of Delhi & Anr. 18.01.2023 Page No. 7 of 9 interrogation, field investigation or scientific evidence is required in the present case. If required, recourse to Section 202 Cr.P.C. can also be taken by Ld. Trial Court.
16. In M/s Skipper Beverages Pvt. Ltd. Vs State 92 (2001) DLT 217, Hon'ble Supreme Court of India observed as under :
"7. It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate 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 orders under Section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to held the complainant. The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 20001 (1) Supreme CR No. 40/2022 Ghanshyam Dass Vs The State NCT of Delhi & Anr. 18.01.2023 Page No. 8 of 9 Page 129 titled "Suresh Chand Jain Vs. State of Madhya Pradesh & Ors."
17. Ld. Trial Court has already taken the cognizance and has listed the matter for recording of pre-summoning evidence.
18. In view of above discussion, the Court is unable to find any illegality or perversity in the Impugned Order dated 17.01.2022. The present revision petition is, accordingly, dismissed.
PRONOUNCED IN OPEN COURT ON THIS 18th DAY OF JANUARY 2023 VRINDA Digitally signed by VRINDA KUMARI KUMARI 16:22:38 +0000 Date: 2023.01.20 (Vrinda Kumari) ASJ-02, South District Saket Courts, New Delhi.
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