Interim Order 20

Order Details: COPY OF ORDER
Pdf Text: CT Case No. 1095/2023
Dheer Singh Vs. Shiva Ayyar
PS Kalyanpuri
06.10.2026
Present: Complainant with ld. counsel Ms. Mamta Rani.
ORDER ON APPLICATION U/S 175(3) OF BNSS
01. By way of the present order, this Court shall decide the
application filed by the complainant under Section 175(3) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking directions to
the SHO, Police Station Kalyanpuri, to register an FIR against the
proposed accused for the commission of cognizable offences.
02. The case of the complainant, in brief, is that the proposed
accused was running a Cyber Cafe and had developed friendly relations
with the complainant. It is alleged that in the year 2022, upon learning
that the complainant was facing difficulty in securing admission of his
children in a reputed school, the accused represented that he possessed
influence and contacts through the EWS quota in Salwan Public School
and assured admission of both children. It is alleged that on the basis of
such representation, the accused demanded a sum of Rs.1,60,000/- from
the complainant.
03. It is alleged that believing the assurances extended by the
accused, the complainant arranged the said amount by obtaining a loan
and, in April, 2022, paid Rs.1,56,905/- through PhonePe to mobile
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number 9717967146 belonging to the accused and Rs.3,000/- in cash.
According to the complainant, after receipt of the aforesaid amount, the
conduct of the accused changed and despite repeated requests over the
following months, no admission was secured and no satisfactory
explanation was furnished.
04. The complainant further alleges that subsequently the
accused admitted that he had no connection with any school or any
person capable of arranging admission and stated that he had taken the
money due to his financial difficulties. It is further alleged that the
accused assured repayment of the amount and, in October, 2022, issued a
cheque bearing No.000092 dated 10.10.2022 for Rs.1,50,000/- drawn on
Kotak Mahindra Bank, while assuring that the remaining amount would
also be paid shortly. However, before presentation of the cheque, the
accused allegedly sought further time.
05. It is further alleged that on 31.01.2023, the accused
transferred an amount of Rs. 40,000/- through online mode towards
partial repayment. Thereafter, when the complainant demanded the
balance amount, the accused allegedly threatened him with dire
consequences, including threats to his life, by stating that if any
complaint was made against him, he would get the complainant killed
through other persons.
06. The complainant further states that several requests were
also made to the family members of the accused for repayment of the
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remaining amount, but to no avail. It is further alleged that the
complainant subsequently learnt that the accused had similarly cheated
several innocent persons. The complainant thereafter submitted a written
complaint dated 22.08.2023 before the SHO, Police Station Kalyanpuri
and the DCP concerned. However, according to the complainant, despite
the disclosure of cognizable offences, no FIR came to be registered,
compelling him to approach this Court by way of the present application.
07. Pursuant to the directions of this Court, Action Taken
Report/Status Report has been filed by the Investigating Officer.
08. In the ATR, it is stated that complaint bearing Diary No.1825
dated 23.08.2023 was received at Police Station Kalyanpuri and marked
to HC Ashok for enquiry. It is further submitted that after enquiry, the
complaint was filed on 10.10.2023 on the ground that the matter
pertained to a money transaction between the parties and no cognizable
offence was made out. Consequently, no FIR was registered.
09. The Investigating Officer has further submitted that the
ICMS record containing the earlier enquiry report has since been
destroyed due to technical issues and, therefore, the earlier report is no
longer available. It is also stated that during further enquiry, the address
mentioned by the complainant was visited but no person by the name of
Dheer Singh was found residing there. It has also been stated that the
mobile number of the complainant mentioned in the complaint was
incomplete. The alleged accused, namely Shiva Ayyar, was also searched
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and it was found that he was already lodged in judicial custody in another
criminal case. The statement of the local Pradhan regarding the
complainant and the accused was also recorded. The Investigating Officer
has ultimately submitted that he shall abide by any direction passed by
this Court.
10. I have heard learned counsel for the complainant and
carefully perused the complaint, application, documents placed on record
and the Action Taken Report filed by the police.
11. The scope of powers under Section 175(3) BNSS is well
settled. The power is discretionary and is required to be exercised
judicially. The Magistrate is not bound to direct registration of FIR
merely because such a prayer has been made. The Court has to examine
whether police investigation is necessary for collection of evidence which
cannot otherwise be produced by the complainant and whether the
interests of justice warrant exercise of such extraordinary power.
12. In the present case, the allegations essentially arise out of an
alleged monetary transaction between the complainant and the proposed
accused. The complainant himself claims to have transferred the amount
through online banking/PhonePe and also alleges issuance of a cheque by
the accused acknowledging the liability. The complainant is admittedly
aware of the identity of the proposed accused as well as the circumstances
in which the transaction took place. The material relied upon by the
complainant primarily consists of documentary evidence such as online
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transaction details, bank records, cheque, legal communications,
complaint made to the police and other documents, all of which are either
already within his possession or can be produced by him during the
course of pre-summoning evidence.
13. It is pertinent to note that although allegations of cheating
and criminal intimidation have been levelled, the determination as to
whether dishonest intention existed from the inception of the transaction
would necessarily depend upon appreciation of oral and documentary
evidence. At this stage, the complainant is in a position to substantiate his
allegations by leading evidence before this Court. No specific recovery is
sought, nor has any circumstance been pointed out requiring immediate
custodial interrogation or police investigation for preservation of
evidence.
14. The Action Taken Report also reflects that an enquiry was
conducted by the police and the complaint was closed on the ground that
the dispute appeared to be arising out of a monetary transaction. Although
the complainant disputes such conclusion, this Court is of the considered
opinion that merely because the police has not registered an FIR does not
automatically require issuance of directions under Section 175(3) BNSS.
The Court is required to independently assess whether police
investigation is indispensable.
15. The complainant knows the identity and whereabouts of the
proposed accused. The alleged payment was made through identifiable
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banking channels. The alleged cheque issued by the accused, the online
transaction details and the alleged threats are matters which can
appropriately be proved by the complainant by entering the witness box
and examining relevant witnesses. If, upon appreciation of pre-
summoning evidence, this Court finds sufficient grounds to proceed,
appropriate process may be issued in accordance with law. Furthermore,
if during the course of inquiry any requirement for police investigation
arises, recourse to the provisions of the BNSS shall always remain
available.
16. Accordingly, this Court is of the considered opinion that no
case is made out for issuance of directions to the SHO under Section
175(3) BNSS for registration of an FIR. However, the allegations made in
the complaint require judicial examination by this Court upon evidence.
17. Consequently, the application under Section 175(3) BNSS
stands dismissed. However, the complaint shall be treated as a complaint
case. Let the matter proceed for recording of pre-summoning evidence
(PSE).
18. Put up for Pre-Summoning Evidence of the complainant on
11.12.2026.
19. Order be given dasti to ld. Counsel for the complainant.
Announced in open Court
on 06.10.2026 (Prerna Rai)
JMFC-02 (EAST)/KKD COURTS/DELHI
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