Order 4

Order Details: COPY OF ORDER
Pdf Text: Ct No.16/2025 Smt. Guddi @ Sangeeta Vs. Divya Prakash Pathak & Anr. Page 01 of 09
CT Cases / 16/2025 GUDDI ALIAS SANGEETA Vs. DIVYA
PRAKASH PATHAK AND ANR /0 (Gazipur)
08.01.2026
Present: Complainant in person with Ld counsel Sh Nadeem Ahmad.
ORDER
01. An application u/s 175(3) alongwith a complaint u/s 223 BNSS has
been moved by the complainant against the respondents/accused persons for the
offences u/s 318(4)/336(3)/351(2)(3)/60/3(5) BNS, with a prayer that the complaint
be sent to the concerned PS for registration of FIR. In view of application u/s 175
(3) BNSS, status report was summoned from the concerned PS.
02. I have carefully perused the application u/s 175 (3) BNSS as well as
the other material on record.
03. As per the facts mentioned in the complaint, that in the month of
December, 2021 complainant met with respondent no.1 namely Divya Prakash
Pathak through respondent no.2 namely Ritu Bhardwaj, as respondent no.2 and
complainant were working in the same company situated at Sector-11, Noida, G.B.
Nagar, Delhi. It is further stated that the respondent no.2 had represented respondent
No.1 as her brother to the complainant. It is further stated that respondent no.2 told
the complainant that her brother/respondent no.1 works in Noida Authority, Uttar
Pradesh and he can get allotment of residential plots, flats, slums, houses etc.
Respondent No.2 arranged meeting between respondent no.1 and complainant at her
own house situated at A-25, Gharoli Extension, Near Primary School, Delhi-110096.
It is further stated that during discussion, respondent no.1 told the complainant that
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"I will get a flat allotted in your name in Sector-122, Noida in lieu of slum for which
the total cost of which will be Rs.7,50,000/-" and the respondent no.2 in connivance
with the respondent no.1 influenced the complainant stating that "my brother has
also got me a Flat in Noida in lieu of the slum and you can fully trust on my brother
and you can also give him money". It is further stated that in this manner, the
complainant and her family got influenced by the respondents, as at that point of
time, the complainant and her family were in process to buy a house for their
permanent residence. It is further stated that after that on 16.12.2021, respondent
no.2 brought some printed and some blank papers to house of the complainant and
further on request of the respondent no.1, the complainant transferred Rs.35,000/- to
the respondent no.1 account through online mode and after that, the respondent no.1
received Rs.1,00,000/- through bank cheque and further received Rs. 15,000/- in
cash from the complainant on 31.03.2022. It is further stated that after that on
31.08.2022, respondent no.1 further received Rs.50,000/- from the complainant in
the name of Registry and in this way, respondent no. 1 received a total of
Rs.3,00,000/- from the complainant.
3a. It is further stated that thereafter, respondent no.1 handed over a
document i.e. Lease or Sale dated 09.11.2022 regarding a Building/Flat No.8A,
Block-13, Sector-122, Noida, Uttar Pradesh to complainant and stated that "this is
the allotment letter of your flat". It is further stated that meanwhile, respondent
no.1 also took signature and thumb impression of the complainant and her husband
on various documents (which also included blank papers) and told that "all these
documents are related to your allotment of flat/house”. It is further stated that
when complainant asked respondent no.1 to make proper registry of the above
said house in her name and deliver its possession, then respondent no.1 started
making excuses and misled the complainant and her husband stating that "you do
not need registration as there is no registration process here and no need to register
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your flat from S.R./Tehsil, in fact you will get its possession without any
registration". It is stated that due to these reasons, complainant and her husband
got some doubt over the intention of respondent no.1, due to which the
complainant refused to give any further money to respondent no.1, which he
demanded from the complainant. Thereafter, respondent no.1 told the complainant
that "monthly installment will be made in lieu of her remaining amount", to which
the complainant objected and told respondent no.1 that neither any registration of
the flat/house has been done nor she got any possession of flat, then why the
complainant should pay monthly installments. It is stated that then respondent
no.1 again misled the complainant.
3b. It is further stated that in the month of August 2023,
respondent no.1 asked the complainant to come at the Collectorate Office,
Surajpur, Greater Noida, Uttar Pradesh and on asking, respondent no.1 replied the
complainant that "the documents of her allotted flat/building have to be
made/executed and on which her signature and photo will be affixed". It is further
stated that on believing upon him, the complainant with her husband namely Shri
Arun Sharma went there, wherein respondent No.1 had already prepared the
documents, on which he got signatures and thumb impressions of the complainant
and her husband Shri Arun Sharma as well and the respondent no.1 also signed on
those papers. It is stated that after completing all the paperwork, respondent no.1
told the complainant that "now within 2-3 days the documents related to the
allotted house/flat will come to her house through post and she will also get the
possession of her flat within 10-15 days". After which, the complainant came back
from there with her husband. It is further stated that complainant and her husband
are poor person and they are layman and illiterate.
3c. It is further stated that neither any document related to any
house or flat delivered to the complainant house nor she was given the possession
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of any flat/house till date. It is stated that when the complainant made call to the
respondent no.1 for making inquiry regarding handing over the possession of her
allotted flat or house, but respondent no.1 did not gave any satisfactory answer to
her and thereafter, on many times complainant and her husband made call to
respondent no.1 and asked him for the possession of the flat and the documents
related to flat/house as well, but he failed to give any fruitful answer, on which, the
complainant and her husband again smelled doubt upon the illegal acts of the
respondent no.1 and as well as criminal conspiracy made by the respondent no.1 in
collusion with the respondent no.2, respondents have cheated the complainant and
influenced her and grabbed a total sum of Rs.3 Lakhs from the complainant in the
name of allotment of Flat in her name from Noida Authority. It is stated that
whenever complainant made call to respondent no. 1, he always kept misleading
and even threatening the complainant. Finding no positive heed, complainant
strictly told respondent no.1 that "either to return back her money or she will make
complaint against him to the police", upon which in the month of September 2023,
respondent no.1 came outside of the complainant house i.e. B-204, Gali No.1,
Block-B, Kondli, Near Sabzi Mandi, Delhi-110096 and handed over a cheque
No.000009 drawn on Kotak Mahindra Bank, dated 07.09.2023 of Rs.2,75,000/- in
the name of the complainant and respondent no.1 told the complainant that "only
deposit this cheque in her account when he will instruct him" and also assured the
complainant that "he will give her the remaining 25,000/- after honoring of said
cheque" and after such promises, he went away from there.
3d. It is further stated that on the instructions of the respondent
no.1, complainant presented the above said cheque No.000009 of Rs. 2,75,000/- in
her bank i.e. Induslnd Bank, Branch Jhandewalan Extension, New Delhi-110055 on
dated 30.10.2023, but the said cheque was bounced with the remarks "differs
signature" on dated 31.10.2023 and then complainant immediately made a call to the
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respondent no.1 and she apprised him that cheque given by him was bounced from
his banker and the complainant had also demanded back her entire amount from
respondent no.1, but on contrary to this, respondent no.1 started misbehaving and
abusing her and further threatened her that "forget your money, he did not have any
money of your and tear the cheque and throw it away". It is further state that
respondent No.1 had not returned any money of the complainant till date and further
his cheque also got bounced.
3e. It is further stated that thereafter, on the basis of fake and
baseless story, respondent no.1 through his counsel had sent a legal Notice on
dated 21.02.2024 to the complainant and of which complainant had replied to him
through her advocate on dated 02.03.2024. It is further stated that respondents
have cheated, defrauded after making a pre-planned conspiracy against the
complainant in collusion with each other and further they succeeded to usurp an
amount of Rs.3,00,000/- from the complainant in the name of allotment of Flat
from Noida Authority and by doing so, the respondents have caused a huge
financial loss to the complainant. It is further stated that due to such acts of the
respondents, the complainant had come under mental agony and also suffered with
financially. It is further stated that respondent no.1 had committed similar kind of
fraud and forgery with many other people and women and he grabbed their money
too, which clearly shows that the respondent no.1 has been involved in such
criminal acts for a long time. It is stated that whenever complainant made call to
respondents, they did not pick up phone of the complainant and whenever they
pick up the phone, they threaten to kill the complainant and her family, due to
which the complainant and her family members are much scared and afraid and
having apprehension of any unwanted incident with them.
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04. It is further the case of the complainant that for these grievances,
the complainant had given a written complaint dated 17.03.2024 to SHO and to
the DCP concerned through postal mode on 13.03.2024. Being unsatisfied with the
action on the above mentioned complaints, the complainant has filed the present
application for registration of FIR.
05. ATR was called in the matter. As per the ATR during the enquiry
complainant was contacted and her statement was recorded, in which she told that
she met Mr. Divya Prakash Pathak/respondent no.1 for the allotment of Flat at Noida
Sec-122, UP, which are for the allotment of the resident of Jhuggi Noida Sec-2 &3
UP. It is stated that when she met to Mr. Divya Prakash Pathak, he told that flat will
cost for 7,50,000/- and for that she had paid 3,00,000/- rupee and rest amount will
be paid in installment. When Mr. Divya Prakash Pathak didn't provided flat to her,
she asked her money back then Mr. Pathak gave him a cheque of Rupee 275000/-
bearing No. 000009 of Induslnd Bank, Branch Jhandewalan Extn, New Delhi-55 and
said that rest amount of 25000/- shall be given after clearing the above mentioned
cheque. It is stated that as per complainant when she deposited the cheque, the
cheque was denied by the bank due to difference in signature and when she
complained to him, Mr. Pathak told the complainant to forget her money.
5a. It is further stated that during enquiry Mr. divya Prakash Pathak
S/O Shatru Ghan Pathak R/O B-256, Gali No.3, Chelera Gaon, Sector-44, Noida,
was interrogated and during the enquiry Mr. Pathak told that he knows Smt. Guddi
from last 3-4 years and accept that he has lend 2,75,000/- rupee from Smt. Guddi
w/o Arun for some work, out of which he had received 2,35,000/- through cheque
and rest 40,000/- rupee cash. It is stated that during the enquiry Mr. Divya Prakash
Pathak told that he had lended 2,75,000/- nor 3,00,000/- from Smt. Guddi. Mr.
Divya Prakash Pathak further told that he had given cheque of Kotak Mahindra Bank
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bearing No 000009, 110485041, 32842031 to Smt. Guddi as a security and as per
Mr. Divya Prakash Pathak he had returned total 2,75,000/- rupee cash to Smt. Guddi
on dated 13.09.2023 and produced an affidavit bearing No. IN-
UP11795781266062V regarding returning of Cash Rs 2,75,000 to Smt. Guddi and
on the said affidavit, Smt. Guddi and her husband Arun Kumar put their thumb
impression and signed it as a witness and recipients of Rs.2,75,000/.- cash from
Mr.Divya Prakash Pathak. It is stated that Mr. Pathak further stated that when he
has returned all her money back through affidavit Smt. Guddi refused to return his
cheque and threatened him saying that they have no cheque and do what can you do.
Then on dated 21.02.2024 Mr. Divya Prakash Patahk sent a notice to Smt. Guddi to
returned his cheque back though his advocate Rajendera Singh Meena.
5b. It is further stated that conclusion from the enquiry it is found
that there is a dispute between complainant Smt. Guddi w/o Arun Kumar and Mr.
Divya Prakash Pathak regarding money. Smt. Guddi is saying that she has given
3,00,000/- to Mr. Divya Prakash Pathak out of which she has paid 2,35,000/- cheque
and online transition and rest amount of 65,000/- was given in cash. She has no proof
regarding the cash given to Mr. Pathak. While Mr. Divya Prakash Pathak accepted
that he has borrowed Rs. 2,75,000/- rupee from Smt. Guddi through cheque or online
transition and 40,000/- cash. During the enquiry Mr. Pathak produced an affidavit
through which he has returned Rs 2,75,000/- cash to Smt. Guddi on dated
13.09.2024. The complainant informed that she has filed a civil case in KKD Court
through her advocate.
5c. In view of above facts and on the basis of statement and
documents provided all the matter belong to the civil nature and in this regard
complainant has also informed. Hence in the view of the above facts the above
mentioned complaint may please be file.
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06. Record perused. Submissions heard.
07. At the outset, it is imperative to keep in consideration the circumstances
when an application u/s. 175 (3) BNSS which replaces the u/s 156
(3)Cr.PC should be entertained by the Court.
In
Ms. Skipper Beverages P. Ltd. Vs. State 2002 Crl. L.J. NOC 333 (Delhi), the
circumstances when the powers of Magistrate U/s 156 (3) Cr.P.C should be ex-
ercised, has been explained. It was held that:
"Section 156 empowers Magistrate 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 seri-
ous and complainant himself in possession of evidence to prove al-
legation, there should be no need to pass order U/s 156 Cr.P.C" .
8. Moreover, it has been held in
Gulab Chand Upadhyaya Vs State
Of U.P. And Ors. 2002 CriLJ 2907 that
“where the complainant is in possession
of the complete details of all the accused as well as the witnesses who have to be
examined and neither recovery is needed nor any such material evidence is required
to be collected which can be done only by the police, no "investigation" would
normally be required and the procedure of complaint case should be adopted."
9. The word used in Section 175 (3) BNSS is 'may'. The powers under
this section are discretionary in nature and an FIR cannot be registered mechanically
by invoking these provisions.
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10. In view of the material on record, preliminary enquiry report of the
IO and after hearing the submissions of counsel, I am of the view that, the identity
of the accused persons are known to the complainant, all the facts and circumstances
of the case also appears to be within the knowledge of the complainant and
evidence can be conveniently taken without assistance of police investigation. 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 225 BNSS for
verification of any documents or for any other purpose, if required.
11. Accordingly with the above observations, application u/s 175 (3)
BNSS is dismissed.
12. The case be re-listed for Pre-summoning evidence u/s 223 BNSS. The
complainant is at liberty to prove her case by way of evidence and the complainant
is directed to produce evidence and witnesses at her own efforts.
13. Put up for PSE on 29.07.2026.
(Sachin)
JMFC-03/E/KKD/08.01.2026
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