Delhi District Court
Anita Aggarwal vs . M/S. Ansal Buildwell Ltd. & Ors. on 5 January, 2012
IN THE COURT OF MS. NAVITA KUMARI BAGHA, MM, NEW DELHI
CC No. 32/1B/11
Anita Aggarwal
W/o Sh. Prakash Chand Aggarwal
A84, Sector50, Noida, U.P.
........... Complainant
Versus
1. M/s. Ansal Buildwell Ltd.
118, UFF, Prakash Deep Building,
Tolstoy Marg, New Delhi.
2. Sh. Gopal Ansal
ChairmancumManaging Director
of M/s. Ansal Buildwell Ltd.
3. Deepak Ansal
Director of M/s. Ansal Buildwell Ltd.
4. Subhash Verma
Director of M/s. Ansal Buildwell Ltd.
5. R.L. Verma
Director of M/s. Ansal Buildwell Ltd.
6. Anurag Verma
Director of M/s. Ansal Buildwell Ltd.
All having Office at :
M/s. Ansal Buildwell Ltd.
118, UFF, Prakash Deep Building,
Tolstoy Marg, New Delhi.
............. Accused
Complaint U/Sec.156(3) Cr.P.C. for directions to DCP, EOW, Qutub
Enclave, Delhi to register FIR U/Sec.406/420/425/467/468/471/477A/506
IPC against accused persons and to investigate the matter
CC No.32/1B/11
Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors.
ORDER:
1. Vide this order I shall dispose of the complainant's application filed on 10.03.2011 U/Sec.156(3) Cr.P.C. for directing the DCP, EOW for registration of FIR against the accused U/Sec.406/420/425/467/468/471/477A/506 IPC. The brief facts of the case as narrated in the application are as follows: In the year 2005, M/s. Ansal Buildwell Ltd. had floated a scheme of booking of plots and it was widely publicized that the plots were to be developed in a world class township namely "Ansal City, Jaipur" on main Ajmer Highway near DPS at Jaipur, Rajasthan and it was told to the general public that whosoever would book the flat in the pre launching scheme he would get the benefit of Rs.250 per Sq. yard as the bookings were being done by the accused persons at the rate of Rs.3250 per sq. yd. Allured by the wide promises, assurances projected by the accused company and the accused persons, the complainant contacted the accused in March, 2005 at their registered office at 118, UFF, Prakash Deep Building, Tolstoy Marg, New Delhi and enquired about the booking of the plots and she was told that all the plots were sold and the original booking was closed. But she was informed by the accused persons that they could arrange a booking for complainant from some existing registrants who are in desperate need of money and that even on those bookings the complainant would get a special discount of Rs.250/ per sq. yd. The accused persons further represented to her that they had already got the land and requisite permission from all the relevant authorities and very soon they would start the project. The complainant was also shown some papers relating to the agreement of land purchase, the approvals, and layout plans of the said project and was further represented that all the plans were ready and the company had CC No.32/1B/11 Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors.
obtained requisite approval from all Govt. authorities for Ansal City, Jaipur. Being allured by the reputation and the rosy picture about the future project, the complainant agreed to purchase a plot and requested them to arrange a plot for her. Thereafter the accused persons again contacted her and told her that if she wanted she could get two plots instead of one and thereafter the accused persons arranged two plots for her which were taken from the original registrants i.e. Preeti Maheshwari and Anita Gupta. The complainant was told to pay two bank drafts of Rs.1,75,000/ each in the name of Preeti Maheshwari and Anita Gupta which was the original booking amount and she was told that the said plots would be transferred in her name very shortly. But they delayed the transfer of bookings in her favour on one or the other pretext. Yet they further told the complainant that they had got complete clearance from Jaipur Development Authority and directed her to make further payment. But she refused to make the payment unless and until the plots were transferred in her name as already more than one year was passed and the same were not transferred in her name and finally the transfer was done on 02.05.2009 after a gap of more than four years. When instead of passing of several months, the company did not offer the plots, the complainant started making enquiry about the project and visited the registered office of the accused company and requested them to again provide proof of ownership of land and approvals of the said project as well as the location of the land. She found that neither the company had land nor they had any kind of approval such as CLU, certificate U/Sec.90B, etc. When she confronted the accused about the approval shown to her at the time of booking of plots, they conceded by saying that those approvals and plans were with regard to some other land or scheme. On further enquiry, the complainant came to know that Jaipur Development Authority had also issued a public notice warning the general public to be careful from the fraud CC No.32/1B/11 Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors.
and cheating played by accused Gopal Ansal and M/s. Ansal Buildwell Ltd. in the name of booking of plots and it was further informed to the general public that no approval had been granted to the company for the said project in Jaipur. In the year 2006, the accused company had demanded further money from all booking holders after widely publishing as well as through letters that they had received NOC from Jaipur Development Authority vide reference No. P6/JDA/AA/P/Town/NOC/06D14 dated 19.04.2006 whereas the perusal of the said document falsified the representation of the said accused persons as it was stated therein that on the basis of the said NOC no sale of plots could be done and in the event of any sale the NOC issued to Ansal Buildwell Ltd., would automatically be cancelled. It was further written in the said NOC that only after the permission would be granted U/Sec.90B and the project was cleared then only the plots could be sold. The accused company had collected about Rs.40 crores in the year 20042005 as advance against future projects and most of these funds were used by the company for the personal use of the accused persons by repaying interest bearing bank term loan, intercorporate deposits, fixed deposits, increased remuneration to its CMD Gopal Ansal, dividends, etc. Even after the passage of several years, the accused company had not taken any license from the relevant authorities and the accused persons are holding the money of thousands of persons in the name of booking and have diverted the same for their personal use which amounts to fraud and cheating to the general public. The accused persons issued a letter dated 09.04.2010 to the complainant stating therein that the accused persons have allotted a plot in Ansal KGK City, Jaipur @ Rs. 2750 per sq. yd. At the time of booking, the complainant was informed that the Ansal City would be developed at Ajmer Road having a prime location whereas now the place offered is in low profile area, quite away from Jaipur where the plot could be purchased for only Rs.800/ CC No.32/1B/11 Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors.
to Rs.1,000/ per sq. yd. The accused persons had also informed the complainant that in case the complainant would not deposit the amount being offered by them for Ansal KGK City, then the complainant's amount earlier deposited by her for Ansal City, Ajmer Road, Jaipur would be refunded to her. The complainant invested a sum of Rs.3,50,000/ in the year 2005 hoping that in another one or two years she would have two residential plots with further hope of appreciation of land and price but due to the fraud committed by the accused persons, even after expiry of six years she is having nothing whereas the accused persons from the money of several thousand investors, have grown manifold. Thus, the accused persons have entered into a criminal conspiracy with each other and in furtherance to their criminal conspiracy, all the accused persons with dishonest and fraudulent intention to grab and misappropriate the money, induced the general public including the complainant to invest the money in the residential colony in the name of Ansal City, Ajmer Road, Jaipur for which neither the land was available with the accused company nor any requisite approval was sought from the requisite authorities. The complainant lodged the complaint against the accused persons with the Economic Offences Wing but no action was taken on her complaint.
Hence, the complainant filed the application U/Sec.156(3) Cr.P.C. before the Court
2. I have heard the arguments from the counsel for the complainant on this application filed U/Sec.156(3) Cr.P.C. and perused the record. The counsel for complainant has requested for directing the police to register FIR against the accused and to investigate the matter. But it is settled law that order for registration of FIR U/Sec.156(3) Cr.P.C. could not be passed in every case in a CC No.32/1B/11 Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors.
mechanical way unless there are serious allegations and further that the evidence is beyond the reach of the complainant or the custodial interrogation appears to be necessary for some recovery of articles or discovery of facts. It is held by Hon'ble High Court of Delhi in M/s. Skippers Beverages Pvt. Ltd. Vs. State, 2001 (3) RCR (Criminal) 514, "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 help the complainant."
It is further held in this case by the Hon'ble High Court, "Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted. The Section empowers the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered CC No.32/1B/11 Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors.
even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore a Magistrate, must apply his mind before passing an order under Section 156(3) of the Code 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 evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact."
3. It is also held by Hon'ble High Court of Delhi in Smt. Mithlesh Vs. The State of N.C.T. of Delhi & Ors., 2009 (4) JCC 2609, "It is not incumbent in each and every case that the Magistrate must direct registration of an FIR and the consequent investigation by the local police. The Magistrate can take an inquiry under Sec.200 Cr.P.C. by examining the complainant and the other witnesses which are produced and then proceed to deal with the complaint under Sections 202 to 204 Cr.P.C. It seems that the petitioner wants to bring bare pressure on the other side by registration of an FIR. This is so on account of the fact that once an FIR is registered other side namely the accused persons would be on the run because they will face an imminent threat of arrest and secondly it becomes convenient for the complainant as well because it becomes a State case where the presence of the complainant is not required on every date of hearing. That is the modus operandi which is invariably adopted and aimed at CC No.32/1B/11 Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors.
by every petitioner."
4. In the present matter the case of the complainant is that the accused had allured her about their future project in Jaipur and on the basis of their representations she invested an amount of Rs.3,50,000/ in their future project for which neither the land was available with the accused nor any approval was obtained by them from the requisite authorities. The plots in question were purchased by her from the original allottees in resale and not directly from the accused company though she has alleged that she was being got allured by the misrepresentations made by the accused persons about their future project at Jaipur. This Court is of considered opinion that it is not a case where the police assistance is required for breaking the case or for discovery of some evidence which the complainant herself is unable to collect at her own. It is not a case where the evidence is beyond the reach of the complainant or that the custodial interrogation is required for discovery of fact. Therefore, the present case is not held to be a fit case for directing the DCP, EOW to register FIR as the complainant herself can also lead the evidence. Therefore, the application U/Sec.156(3) Cr.P.C. is dismissed. However the application U/Sec.156(3) Cr.P.C. is treated as complaint case. Cognizance of the offence is taken and the matter is adjourned for 26.03.2012 for pre summoning evidence.
(Announced in open
Court on 05.01.2012) (Navita Kumari)
MM/New Delhi
CC No.32/1B/11
Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors.
CC No.32/1B/11
05.01.2012
Present: Counsel for complainant.
Vide separate order on the application of the complainant filed U/Sec. 156(3) Cr.P.C., the prayer to direct the SHO to register the FIR is declined. However the application U/Sec.156(3) Cr.P.C. is treated as a complaint case. Cognizance of the offence is taken and the matter is adjourned for 26.03.2012 for presummoning evidence.
(Navita Kumari) MM/ND/05.01.12 CC No.32/1B/11 Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors. CC No.32/1B/11 Anita Aggarwal Vs. M/s. Ansal Buildwell Ltd. & Ors.