Interim Order 6

Order Details: COPY OF ORDER
Pdf Text: CT Cases / 9056/2024
Gopal Khemka Vs. Nem Singh
(Mayur Vihar)
ORDER
1. Vide this order, I will dispose off the application u/s. 175(3) BNSS (156(3)
Cr.P.C. (3) Cr.PC).
2. It is the case of the complainant that the accused was introduced to him by his
tenant and in November 2021. complainant entered into a collaboration qua property
number 21/156 and 21/157, both located at Trilok Puri, Delhi with accused no. 1 and
owner of the aforesaid properties namely Kanchilal and claims to have paid his share
to accused no. 1 for both the properties amounting to Rs. 9, 50,000/-. He claims that
after the collaboration, accused no. 1 convinced him to hand over the original
collaboration agreement and GPA to him n the pretext that it would make the selling
of property easier. Complainant also claims that on further demand of accused no. 1,
he paid Rs. 8.5 lacs to accused for construction work. However, despite taking the
amount, the accused did not start the construction work on the ground that his 09 years
old daughter had health issues. On further demand, complainant gave accused Rs. 01
lakh on 22.01.2022 and Rs. 50,000/- on 25.02.2022 but the accused did not start the
construction work. Complainant claims that the accused no. 1 could not arrange his
share of money for construction and so he borrowed Rs. 1.5 lacs from him on
07.04.2022 and executed a loan agreement. Ultimately, the complainant claims that he
has paid a total amount of Rs. 16.25 lacs to accused for the said properties.
3. In May 2022, when the complainant visited the properties, he saw that the
accused no. 1 was constructing the building and he came to know that the accused no.
1, in conspiracy with Kanchilal, has made a new collaboration agreement and GPA
with someone else and the earlier documents have been returned to Kanchilal. Upon
demanding his money back, the accused no.1 had handed over two post dated cheques
dated 25.01.2023 to the complainant signed by one Sher Singh on the pretext that his
bank account was having some problem. Complainant wrote several letters for
recovery his money and after much deliberation, accused no. 1 told the complainant
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that he needs Rs. 03 lacs to complete the construction of his flat no. 16/145, First
Floor, Trilok Puri, Delhi while showing him the entire chain of property papers
executed by one Shanti Devi in favour of Accused no. 1. In May 2023, the
complainant visited the flat and met Shanti Devi and upon insistence of accused no.1,
gave him a further amount of Rs. 2.5 lacs while executing GPA/Sale agreement etc.
Complainant claims that after some time, he met one Somnath, S/o Shanti Devi and
came to know that the documents by which Shanti Devi had given Flat no. 16/145,
First Floor, Trilok Puri, Delhi to the accused no.1 are forged. Complainant came to
know that the accused no.1 had sold the property to Somnath in the year 2022 as one
document was executed in 2020 by Shanti Devi in favour of accused no.1. Somnath
had also handed over the documents to the complainant in which the accused no.1 had
surrendered his right in the first floor of 16/145, First Floor, Trilok Puri, Delhi to
Shanti Devi as he had to pay Rs. 20 lacs to her. Complainant’s wife Anita Khema also
lodged a complaint with SHO PS Mayur Vihar as accused no.1 had given threat to the
complainant’s family. Hence, the present case.
4. I have heard the Ld. Counsel for applicant/complainant at length.
5. Before deciding the present application, it becomes imperative to keep in
consideration the circumstances when such an application u/s 175 (3 )BNSS (156(3)
Cr.PC) should be entertained by the court. In Ms. Skipper Beverages Pvt. Ltd. Vs.
State 2002 Crl. LJ NOC 333 (DELHI), the circumstance when the power of
Magistrate u/s 156 (3) Cr.PC should be exercised, has been explained. It was held
that:
' 'Section 156 empowers magistrates to direct police
to register case and initiate investigation but this power had to
be exercised judiciously not in mechanical manner. Those
cases, where allegations are not very serious and applicant
himself is in possession of evidence to prove allegations, there
should be no need to pass order u/s 156 Cr.PC. But, cases
where magistrate is of the view that nature of allegation is such
that applicant himself may not be in possession to collect and
produce evidence before court, and interest of justice demand
that police should step into to help applicant, police assistance
can be taken.''
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It was again held by Hon'ble Delhi High Court in Mohd. Salim vs.
State in Crl.M.C.No. 3601/2009 decided on 10th March, 2010
that
"In fact, the Magistrate ought to direct investigation by the
Police only where the assistance of the Investigating Agency is
necessary and the Court feels that the cause of justice is likely
to suffer in the absence of investigation by the Police. The
Magistrate is not expected to mechanically direct investigation
by the Police without first examining whether in the facts and
circumstances of the case, investigation by the State machinery
is actually required or not. If the allegations made in the
application are simple, where the Court can straightaway
proceed to conduct the trial, the Magistrate is expected to
record evidence and proceed further in the matter, instead of
passing the buck to the Police under Section 156(3) of the
Code." Same was the view of Hon'ble Delhi High Court in
Subhkaran Luharuka & Anr. vs State & Anr. Crl.M.C.
No.6122-23/2005 decided on 9 July, 2010.
6. Now coming to the facts of the present case and after going through the
application and complaint of the applicant/complainant, the court is of opinion that all
the facts of the dispute are within the knowledge of the applicant and even the identity
of the respondent is known and there is no requirement of any police investigation.
Evidence can be taken very easily without police investigation. So, in the facts of the
present case, there appears no requirement of police investigation. Further, if there
is any need, police inquiry can be had u/s 202 Cr.P.C. Accordingly with the
above observations, application u/s 156(3) Cr.P.C. is dismissed.
(PRITU RAJ)
JMFC-01(EAST)/KKD/DELHI
26.05.2025.
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