Interim Order 12

Order Details: COPY OF ORDER
Pdf Text: CT Case No. 9199/2024
Kashif Raees Vs. Preeti Gupta and Anr
PS Geeta Colony
08.04.2026
Present: Mohd. Akrem, Ld. Counsel for the complainant.
ORDER ON APPLICATION U/S 175(3) OF BNSS
01. By this order, the Court shall dispose of the application of
complainants u/s. 175(3) of BNSS for registration of FIR against the
accused persons u/s.
61(2)/308(6)/318(4)/338/336(3)/340(2)/351(2)(3)/3(5) of BNS.
02. Succinctly put, it is the case of the complainants that in
March, 2021, he purchased property bearing House No. 93, Third Floor,
situated at Gali No. 1, near Shahi Dairy, Shastri Nagar, Geeta Colony,
Delhi-31, alongwith 1/4th share in car parking, after paying the entire sale
consideration to accused no. 1.
03. It is further alleged the thereafter, the proposed accused
persons approached the complainant with an offer to carry out finishing
works in the said flat, including modular Kitchen, almirah, painting,
waterproofing, installation of motor pump, iron works, etc for a total
consideration amount of Rs. 4,00,000/-. The complainant agreed and
issued two cheques amounting Rs. 2,00,000/- each bearing nos. 492649
and 492650 dated 26.03.2021. It is stated that while the amount and date
were filed, the name of the payee was left blank.
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04. The complainant alleges that despite recepit of the cheques,
the accused persons neither commenced the work nor returned the
cheques on demand, claiming that the same were misplaced.
Apprehending misuse, the complainant instructed his bank to stop
payment.
05. It is further alleged that on 22.05.2024, the complainant
received legal notices from the proposed accused persons claiming that
the cheques were issued towards repayment of a friendly loan and
demanding payment of Rs. 2,00,000/- against each cheque. Upon perusal,
the complainant found that the year on the cheques had allegedly been
altered from 2021 to 2024.
06. The complainant denies any loan transaction and alleges that
the accused persons have forged and tampered with the cheques with an
intention to extort money.
07. It is also stated that prior disputes existed between the parties
regarding alleged encroachment of parking space by the proposed
accused persons, for which complaints were made to police and civic
authorities by the complainant in the year 2023 and 2024.
08. The complainant further submits that despite filing written
complaints, dated 29.05.2024 before SHO PS Geeta Colony and other
senior officers, no action has been taken by the police. It is in light of the
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aforesaid averments that the present application has been filed u/s. 156(3)
of Cr.P.C for registration of FIR against the accused persons.
09. In M/s. Skipper Beverages Pvt. Ltd. vs. State 2001 IV AD
(Delhi), it was held that:
“
It is true that Section 156(3) of the Code
empowers to Magistrate to direct the police to
register a case and intimate 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 complaint himself is
in possession of evidence to prove his
allegations there should be no need to pass
orders U/s. 156 (3) of the Code. This 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 interest
of justice demand that the police should step in
the help of the complaint.
10. The Court is supposed to order investigation as per the
guidelines issued by the Hon'ble Delhi High Court in the case of Subh
Karan Luharuka & Anr. vs. State & Anr. 2010(3) JCC 1972, where it is
laid down as under:
“52A. For the guidance of Subordinate Courts,
the procedure to be followed while dealing
with an application U/s 156 (3) of the Code is
summarized as under:
(i) Whenever a Magistrate is called upon to
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pass orders under Sec 156 (3) of the code, at
the outset, the Magistrate should ensure that
before coming to the Court, the complainant
did approach the police officer in charge of the
Police of Station having jurisdiction over the
area for recording the information available
with him disclosing the commission of a
cognizable offence by the persons/persons
arrayed as an accused in the complaint. It
should also be examined as to what action was
taken by the SHO, or even by the senior officer
of the Police, when approached by the
complainant under Section 154 (3) of the Code.
(ii) The Magistrate should then form his own
opinion whether the facts mentioned in the
complaint disclose commission of cognizable
offence by the accused persons arrayed in the
complaint which can be tried in his
jurisdiction. He should also satisfy himself
about the need for investigation by the police
in the matter. A preliminary enquiry as this is
permissible even by an SHO and if no such
enquiry has been done by the SHO, then it is
all the more necessary for the Magistrate to
consider all these factors. For that purpose, the
Magistrate must apply his mind and such
application of mind should be reflected in the
Order passed by him.
Upon a preliminary satisfaction, unless there
are exceptional circumstances to be recorded in
writing, a status report by the police is to be
called for before passing final orders.
(iii) The Magistrate when approached with a
complaint under Section 200 of the Code,
should invariably proceed under Chapter XV
by taking cognizance of the complaint,
recording evidence and then deciding the
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question of issuance of process to the accused.
In that case also, the Magistrate is fully entitled
to postpone the process if it is felt that there is
a necessity to call for a police report under
Section 202 of the Code.
(iv) Of course, it is open to the Magistrate to
proceed under Chapter XII of the Code when
an application under Section 156 (3) of the
Code is also filed alongwith a complaint U/s
200 of the Code if the Magistrate decides not
to take cognizance of the complaint. However,
in that case, the Magistrate, before passing any
order to proceed under Chapter XII, should not
only satisfy himself about the pre requisites as
aforesaid, but, additionally, he should also be
satisfied that it is necessary to direct Police
investigation in the matter for collection of
evidence which is neither in the possession of
the complainant nor can be produced by the
witnesses on being summoned by the Court at
the instance of the complainant, and the matter
is such which calls for investigation by a State
agency. The Magistrate must pass an order
giving cogent reasons as to why he intends to
proceed under Chapter XII instead of Chapter
XV of the Code.”
11. In the instant case, ATR was called wherein it is submitted
by si Satender Kumar Araya who stated that two complaints dated
29.05.2024 and 04.06.2024 were received at PS Geeta Colony and
enquiry was conducted. During enquiry, the complainant alleged that he
had issued two cheques of Rs. 4,00,000/- for renovation work which was
not executed and further alleged tampering of cheque dates. However, the
alleged persons Ashish Gupta stated that the amount was taken as a loan
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and cheques were issued towards repayment. It further stated by the IO
that upon enquiry, no cognizable offence was found to be made out.
Accordingly, no FIR has been registered and the complaints have been
filed.
12. I have heard the submission of the complainant and carefully
perused the complaint, application under Section 175(3) of BNSS,
documents placed on record and the material annexed.
13. It is settled proposition of law that power under Section
175(3) of BNSS is to be exercised judiciously and not mechanically. The
Hon'ble High Court of Delhi in
Subhkaran Luharuka Vs. State (Govt. of
NCT of Delhi) had laid down that the Magistrate must apply his mind and
such directions are warranted only where police investigation is necessary
for collection of evidence which is not within the reach of the
complainant.
14. Further, in
Priyanka Srivastava Vs. State of UP, the Hon’ble
Supreme Court of India emphasized that such applications must not be
used routinely and should be supported by proper material.
15. In the present case, the gravamen of allegations pertains to
(i) alleged misuse and tampering of cheques and (ii) dispute arising out of
transaction relating to property finishing work.
16. The identity of the accused persons is admittedly known to
the complainant. The entire transaction is stated to have taken place
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between the parties directly.
17. The material evidence, including copy/details of cheque;
bank records regarding stop payment; legal notice received; prior
complaints made by the complainant are all within the possession or can
be procured by the complainant himself.
18. The primary allegations of forgery/tampering of cheques
would requires proof, which can be established by leading evidence
during pre-summoning stage, including summoning bank officials and
relevant record. At this stage, no such circumstance is made out which
necessitates immediate police investigation.
19. Further, the dispute also appears to have elements of a
civil/commercial nature arising out of alleged contractual obligations
regarding finishing work of the property.
20. The complainant has not demonstrated that any evidence is
beyound his reach or that custodial interrogation of accused persons is
required at this stage.
21. In view of the above, this court is of the considered opinion
that no sufficient opinion that no sufficient ground is made out for
directing registration of FIR under Section 175(3) of BNSS.
22. In view of the aforesaid reasons, this Court finds that there
is no merit to the present application and accordingly, the application u/s.
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175(3) of BNSS stands dismissed. However, the complainant is granted
an opportunity to lead pre-summoning evidence in support of its
allegations.
23. Re-notify for pre-summoning evidence on 14.07.2026.
Announced in open Court
on 08.04.2026 (PRERNA RAI)
JMFC-02 (EAST)/KKD COURTS/DELHI
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