Order 18

Order Details: COPY OF ORDER
Pdf Text: 59
Ct. Cases 4248/2024
KAMLESH Vs. KAMAL GOEL
(North Rohini)
28.07.2026
Present: Ms. Nidhi Tyagi, Ld. proxy counsel for complainant through
VC.
ORDER
1. Vide this order, this Court shall dispose of an application filed by the
applicant/complainant under Section 156(3) Cr.P.C.
2. Brief facts as alleged in the application are that proposed accused
no.1 and 2 induced both the complainants to part with Rs. 40 lacs on
the pretext of letting out to complainant a property situated in Rohini,
Delhi. They induced complainants to sell their property in order to li-
quidate funds. Thus, complainants paid a sum of Rs. 40 lacs to pro-
posed accused no.1 and 2 by selling away their property. After a
month, proposed accused no.1 and 2 persuaded complainants to pur-
chase the said property from accused claiming themselves to be in
dire need of money to set up their business in Dubai and stating they
have no other option but to sell the property and that complainants
may have to hand over physical vacant possession to future buyers
and they will not be able to return Rs. 40 lacs before 31.03.2024.
Fearing about parting their lifelong savings, complainants agreed to
the proposal to buy the property from proposed accused no.1 and 2
and started making payments to accused as consideration amount in
lieu of purchasing the property. Thus, complainants paid a total sum
of Rs. 69,75,000/-.
3. It has been further alleged that later complainants came to know that
the previous security agreement was defective and thus, they asked
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accused persons to get a proper written agreement but accused
delayed the same. On 13.08.2022, proposed accused no.2 approached
complainants with a photocopy set of ownership documents wherein
it was stated that proposed accused no.2 has received Rs. 83,00,000/-
from complainant as earnest money for sale/transfer of property no.
158, D-12, ground floor, Sector-7, Rohini out of total sale considera-
tion of Rs. 1,50,00,000/- and Rs. 67 lacs was left unpaid. However,
the documents shown to complainants were reflecting the ownership
of proposed accused no.1 on the said property, whereas the receipt
was signed by proposed accused no.2. Thus, sensing the fraud, com-
plainants refused to sign or make any further payment. Accused no.1
called complainants from Dubai and talked about his critical condi-
tion promising to get the documents signed and executed as per law
while requesting complainants to release further payment as consid-
eration amount. Thus, complainants made total payment of Rs. 83
lacs to accused persons in lieu of purchasing the property.
4. It is alleged that again accused told complainants that property was
mortgaged against a bank loan which accused no.1 and 2 took few
years ago and the same is required to be repaid first as original prop-
erty documents are with the bank. When complainants refused to pay
the unpaid EMIs on behalf of accused no.1 and 2 and requested them
not to forfeit the money and at least sign an agreement to sell, ac-
cused no.1 and 2 agreed to sign the same on condition that complain-
ants would have to pay unpaid bank EMIs on behalf of accused no.1
and 2 until 20.03.2023 and further money as per their demands
which shall be adjusted at the time of execution of sale deed with
total sale consideration of Rs. 1,40,00,000/- and any exceeds would
be repaid back to complainants and that accused would anyhow pay
the bank loan before 20.03.2023 so that the property documents
could be released from the bank. Left with no option, complainants
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paid a total sum of Rs. 89,12,000/- and further bank EMIs of Rs.
4,75,000/-.
5. It is alleged that later complainants came to know that accused per-
sons had no intention to repay the bank loan and therefore sale deed
could not be registered on 20.03.2023 due to non-payment of bank
loan by accused persons. Instead accused persons demanded com-
plainant to pay the entire sale consideration before executing any
documents or paying bank loan. Accused induced and blackmailed
the complainants repeatedly and thus complainants paid a total sum
of Rs. 1,41,52,000/- to proposed accused persons and requested them
to execute the property documents.
6. It is alleged that complainants were having peaceful and uninterrup-
ted possession of said property since 01.04.2022 but on 31.05.2023
one Rupesh Jain came with goons and blocked the entrance of the
property claiming himself to be lawful owner of the said property.
Complainants filed many complaints before the police and also con-
fronted the accused persons who promised to execute sale deed. But
complainants came to know from TPDDL that electricity connection
was recently shifted in the name of one Mr. Mukesh Khattar. Further,
one Vikas Rana claimed to have purchased the said property from ac-
cused persons in 2020 in name of his wife Simran Rana. Thus, ac-
cused persons defrauded the complainants and cheated upon them.
Proposed accused no.1 later accepted the fact that they sold property
to many people as they were in debt. Further, on 22.06.2023 a notice
was received from Tata Capital Services Ltd that the said property
was being sent u/s 13(2) of SARFAESI Act as Rs. 81,96,842/- re-
mained unpaid bank loan from proposed accused no.1 and 2.
7. Thereafter, in July 2023 accused persons fixed a meeting with com-
plainant’s son and gave four post-dated cheques bearing no. 000020,
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005416, 000021, 000022 for a total sum of Rs. 1,04,00,000/- with
promise to refund balance sum of Rs. 37,52,000/- after taking back
property from complainants. But the said cheques were returned back
unpaid with reason “Account blocked”. Upon being confronted, ac-
cused persons abused and threatened the complainants. The bank
took possession of the property on 18.12.2023 from complainant due
to non-payment of bank loan by accused no.1 and 2. Thus, accused
persons in conspiracy with one another have cheated money from
complainants and misappropriated the amounts and siphoned of the
same for personal gains. Despite filing complaints to SHO and DCP
concerned, no action has been taken by the police. Thus, this applica-
tion has been filed praying to register an FIR against proposed ac-
cused persons for offence u/s 406/409/420/467/468/471/506/120-B/
34 IPC. In favour of his submissions, Ld. counsel for complainant re-
lied upon judgments passed in the case of
Kathyayini v. Siddharth
P.S. Reddy & ors (wherein it has been held that pendency of civil
proceedings on same subject matter involving same parties is no jus-
tification to quash criminal proceedings if a prima facie case exists
against accused persons), the case of
Vesa Holdings P. Ltd. v. State
of Kerala & ors. (holding that only because a civil remedy may be
available to the complainant that itself cannot be aground to quash
criminal proceedings), the case of
S.N. Vijayalakshmi & ors. v. State
of Karnataka & ors. (wherein it is held that civil and criminal pro-
ceedings both are maintainable on same set of allegations qua same
person) and the case of
R.K. Vijayasarathy & ors. v. Sudha Seeth-
aram & ors.(which elaborates the ingredients necessary to invite the
rigours of Section 405, 415, 420 IPC).
8. Action Taken Report was filed by SI Randeep on 26.04.2025 that a
prima facie case is made out for offence u/s 420/34 IPC and approval
for registration of case is being sought from competent authority. It
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was also submitted that proposed accused persons had not joined in-
quiry till then. However, in ATR filed subsequently by same EO,
matter was found to be breach of agreement which is civil in nature,
that complainant was well aware about the loan against the said
property at the time of sale agreement and no concealment of facts
was found. Complainant has already filed a commercial suit no. CS
(comm.)/195/2024 and for recovery u/s 138 NI Act which are
pending. When called upon to explain the two contrary reports filed
by EO, disciplinary proceedings were initiated against SI Randeep by
the order of Addl. DCP, Rohini District.
9. Arguments heard. Record perused.
10. Position of law regarding an application filed under Section 156(3)
of Cr.P.C. is well settled and the Hon’ble Supreme Court of India has
laid down the principles which a Magistrate should keep in my while
dealing with such an application in the case of
Om Prakash Am-
badkar vs. The State of Maharashtra and Ors, 2025 INSC 139,
wherein the following has been held:
“24.Thus, there are prerequisites to be followed by the
complainant before approaching the Magistrate under Section
156(3) of the Cr.P.C. which is a discretionary remedy as the
provision proceeds with the word ‘may’. The Magistrate is
required to exercise his mind while doing so. He should pass
orders only if he is satisfied that the information reveals
commission of cognizable offences and also about the
necessity of police investigation for digging out of evidence
neither in possession of the complainant nor can be procured
without the assistance of the police. It is, thus, not necessary
that in every case where a complaint has been filed under
Section 200 of the Cr.P.C. the Magistrate should direct the
Police to investigate the crime merely because an application
has also been filed under Section 156(3) of the Cr.P.C. even
though the evidence to be led by the complainant is in his
possession or can be produced by summoning witnesses, with
the assistance of the court or otherwise. The issue of
jurisdiction also becomes important at that stage and cannot be
ignored.
…………
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29.Section 175 of the BNSS corresponds to Section 156 of the
Cr.P.C. Sub-section (1) of Section 175 of the BNSS is in pari
materia with sub-section 156(1) of the Cr.P.C. except for the
proviso which empowers the Superintendent of Police to direct
the Deputy Superintendent of Police to investigate a case if the
nature or gravity of the case so requires. Sub-section (2) of
Section 175 the BNSS is identical to Section 156(2) of the
Cr.P.C. Section 175(3) of the BNSS empowers any Magistrate
who is empowered to take cognizance under Section 210 to
order investigation in accordance with Section 175(1) and to
this extent is in pari materia with Section 156(3) of Cr.P.C.
However, unlike Section 156(3) of the Cr.P.C., any Magistrate,
before ordering investigation under Section 175(3) of the
BNSS, is required to:
a. Consider the application, supported by an affidavit, made by
the complainant to the Superintendent of Police under Section
173(4) of the BNSS;
b. Conduct such inquiry as he thinks necessary; and
c. Consider the submissions made by the police officer”
11. The position of law which emerges is that before an application
under Section 156(3) of Cr.P.C. is filed before a Magistrate, the
applicant/complainant should have sent a complaint to the concerned
SHO and DCP and the application should be accompanied with an
affidavit sworn by the applicant. Further, power under Section 156(3)
of Cr.P.C. is a discretionary one and should not be exercised
mechanically. The facts of the application must disclose commission
of some cognizable offence, the allegations are of such a nature that
some investigation is required by the police and applicant is not in
possession of evidence in support of the allegations and it is only in
such circumstances that the application under Section 156(3) of
Cr.P.C. be allowed.
12. Coming to the case at hand, applicant has placed on record copy of
security agreement dated 01.04.2022 executed between proposed
accused no.1 and complainant qua property no. D-12/158, GF,
Sector-7, Rohini wherein proposed accused no.1 has claimed himself
to be lawful owner of said property. Copy of sale agreement/receipt
dated 28.09.2022 has also been filed. Complainants have also filed
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copy of their bank account statements claiming to have parted with
their money through their bank accounts. Copy of the four cheques
issued by proposed accused to complainants which have been
returned dishonoured are also on record. From the perusal of above
documents and the ATRs filed on record, it transpires that EO had
not examined any proposed accused person or verify the facts of the
complaint and the various financial transactions, which are the basis
for enquiry of any financial fraud. The allegations per se are
suggestive of cheating and misappropriation of funds of
complainants by accused no.1 and 2 on the pretext that they were
lawful owner of the subject property. Despite complainant having
parted with a large sum of money including payment of unpaid EMIs
on behalf of proposed accused-upon repeated requests and demands
made by proposed accused, neither any sale deed was executed in
favour of complainant nor the bank loan on the subject property was
cleared by proposed accused. Thus, the only possession of the
subject property which was with the complainants, was also taken
away by the bank upon default of payment of bank loan by proposed
accused no.1 and 2.
13.Thus, considering the documents on record and allegations of
complainant backed with their bank account statements and copy of
agreement and receipt, it is a fit case for registration of FIR against
proposed accused Kamal Goel and Ritu Goel. But no action has been
taken by EO concerned. A disciplinary proceeding has also been
initiated against the said EO.
14. Further, pendency of commercial suit and criminal complaint u/s 138
NI Act is no ground not to register the FIR, especially when the case
involves numerous financial transactions qua which police investigation
is required for unearthing the truth behind alleged cheating. In view of
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the above observations, Court finds
prima facie material as to
occurrence of a cognizable offence.
Let notice be issued to SHO concerned to register an FIR
under appropriate sections of prevailing law against proposed accused
persons and investigate into the alleged forgery and file a compliance report
on NDOH.
Be put up for compliance on 20.08.2026.
(AAKANKSHA)
Judicial Magistrate First Class-03
NW/Rohini, Delhi/28.07.2026
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