Final Order 3

Order Details: COPY OF ORDER
Pdf Text: Cr Rev No. 374/2024
MANGE RAM SHARMA AND ANR.
Vs.
RAKESH NEGI AND ORS
16.12.2024
Present: Sh. Ishan Seth, Ld. Counsel for petitioners with
petitioner No. 1 in person.
Sh. Deepak Tyagi, Ld. Counsel for petitioners,
through VC.
Sh. Vaibhav, Ld. Counsel for respondents.
Heard detailed arguments on the present petition on
behalf of all the stakeholders.
Put up for order at 04:00 pm.
ORDER
1. Present revision is against the order dated
26.03.2024 passed by Ld. JFMC whereby he has dismissed the
application of the petitioner u/S 156(3) Cr.P.C. and has listed the
matter for pre-summoning evidence.
2. Brief facts of the case as stated in the complaint are
that in 2019, the petitioners were looking for a residential
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apartment with reserved parking facility. During that time, they
came in contact with R-1 through their common friend. He
claimed that he was an UP RERA registered property dealer /
agent in the Indirapuram locality of Ghaziabad, U.P. He showed
them a Flat No. B1/402, 4th Floor, Type 2, Bedroom Unit, in
VXL Eastern Heights, Indirapuram, Nayaya Khand III,
Ghaziabad, U.P. with one reserved car parking. The amount
alongwith reserved parking was agreed for Rs.35 Lacs. It is
alleged that despite repeated requests, he never facilitated their
direct meeting with the owner of the said apartment. The
petitioners transferred the amount of Rs.30,70,000/- through
bank and paid Rs.5,10,000/- by way of cash to R-1.
3. It is alleged that despite the previous assurance by
R-1 that Rs.5,10,000/- was towards reserved parking, the same
was nowhere mentioned in the sale deed. The sale consideration
in the sale deed was shown as Rs.30,70,000/- only. It is further
stated that when they shifted to the abovesaid house, no reserved
open car parking was available with the flat. The parking was
free for all the residents of the gated compound of the society. It
is alleged that the respondent No. 1 has cheated the petitioners
for the amount of Rs.5,10,000/- towards reserved parking which
was never provided to them. They filed the complaint before the
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police, but since no action was taken, they filed the complaint
case alongwith an application before the concerned MM u/S 156
(3) Cr.P.C. for lodging the FIR against the respondents, which
has been dismissed by Ld. JMFC vide order dated 26.03.2024,
hence the present petition.
4. As per ATR received from concerned IO, he has
stated that the dispute arose out of the sale agreement and no
cognizable offence is made out.
5. It is argued by the counsel for petitioners that the Ld.
JMFC failed to appreciate that two agreements to sell were
executed between the parties. The first agreement was for the
amount of Rs.35,80,000/- in which Rs.5,10,000/- was paid in
cash towards reserved car parking. The respondent No. 1 forged
the second agreement to sell for the amount of Rs.30,70,000/-
and forged the signatures of the petitioner no. 1 on the said
agreement. He submitted the said agreement for obtaining the
loan. It is submitted that from the various entries in the bank
account statement of the petitioner no. 1, it is evident that he had
withdrawn Rs.2,00,000/- on 11.10.2019, Rs.50,000/- on
10.12.2019 and Rs.3,10,000/- on 20.01.2020 and the said total
amount of Rs.5,10,000/- was paid in cash by him to respondent
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No. 1. It is submitted that the assistance of police is required to
collect the evidence i.e. the original agreement to sell which was
executed for the amount of Rs.35,80,000/-. It is prayed that the
order dated 26.03.2024 be set aside and FIR be lodged against all
the respondents.
6. Per contra, it is argued by the Ld. Counsel for
respondent No. 1 that R-1 has not committed any cheating or
forgery with the petitioners. It is further submitted that the
petitioner No. 1 has availed the loan of Rs.30,70,000/- on the
basis of the agreement to sell dated 10.01.2020. Even in the sale
deed, the amount mentioned is Rs.30,70,000/-. The bank
statement of the petitioner No. 1 also shows transfer of
Rs.30,70,000/- towards sale consideration of the flat in question.
It is submitted that the petitioners have not filed any alleged
agreement to sell for the amount of Rs.35,80,000/-. It is
submitted that there is no such agreement. The only agreement
which was executed was for the amount of Rs.30,70,000/-. It is
submitted that there is no infirmity in the order dated 26.03.2024.
It is prayed that the revision be dismissed.
7. Heard detailed arguments on behalf of all the
stakeholders. I have perused the revision file as well as the
impugned order dated 26.03.2024.
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8. It is well settled law that the provisions of Section
397 Cr.P.C. confers power on the High Court or Sessions Court
to call for and examine the record of any proceeding before any
inferior criminal Court for the purpose of satisfying itself as to
the correctness, legality or propriety of any finding, sentence or
order accorded or passed, and as to the regularity of any
proceeding of such inferior Court. The revisional jurisdiction can
be exercised where there is palpable error; non-compliance with
the provisions of law; the decision is completely erroneous or
where the judicial discretion is exercised arbitrarily.
9. It is no more res integra that before passing any
order to proceed on an application u/S 156(3) Cr.P.C. the court /
Magistrate must be satisfied that it is necessary to direct police
investigation in 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. In the present case, admittedly all the
documents are in the possession of the petitioners/complainants.
Admittedly, the petitioner No. 1 had availed the loan on the basis
of agreement to sell in which the sale consideration amount is
Rs.30,70,000/-. Even in the sale deed, the sale consideration
amount is Rs.30,70,000/-. In the entire sale deed, there is no
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clause regarding the separate reserved parking. The Ld. JMFC in
the impugned order has rightly observed that all the evidence is
within the reach of the petitioners/ complainants and that no new
facts are to be unearthed and the custodial interrogation is not
needed. Further, the petitioners are well aware of the witnesses
who are to be examined and the identity of the accused persons.
All the documents are in possession of the petitioners and
nothing is required to be collected through police investigation.
10. In view of the above discussion, the petitiones have
failed to show any perversity, irregularity or infirmity in the
order dated 26.03.2024. The same is upheld, accordingly. The
petition being devoid of any merits is dismissed.
Revision file be consigned to record room.
TCR, if any be sent back to the concerned court
alongwith the copy of this order.
(KIRAN GUPTA)
Addl. Sessions Judge-04
Patiala House Courts
New Delhi/16.12.2024
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