:1: In the Court of Ms. [ENTITY] Additional Sessions Judge FTC (Central) Tis Hazari Courts: Delhi. [CASE NUMBER] [ENTITY] S/o Sh. Narain Dass Bajaj R/o FA369/A (IInd Floor) Mansarover Garden, New Delhi. Revisionist V E R S U S [ENTITY] (Govt. of NCT Of Delhi) 2).Sh. [ENTITY] S/o Sh. K.C. Bhatia R/o 183, DDA Flats, Vishal Market, Tagore Garden, New Delhi110027. 3).Smt. [ENTITY] W/o Sh. [ENTITY] R/o 183, DDA Flats, Vishal Market, Tagore Garden, New Delhi110027. 4).Smt. [ENTITY] W/o Sh. Rajiv Kharbanda R/o 34/14, West Patel Nagar, New Delhi110008. Respondents :2: O R D E R
1. Aggrieved by the order dated 21.01.2010, passed by the Learned Trial Court dismissing the application moved by the revisionist U/[SECTION] [ACT], the revisionist filed this revision which is under disposal vide this order.
2. It was urged on behalf of the revisionist that he had filed a complaint U/[SECTION] [ACT] for offence punishable U/[SECTION] [SECTION] [ACT] which was also supported with an application U/[SECTION] [ACT] seeking directions for the police to register FIR and to investigate into the case against the respondents. It was further submitted that the revisionist/ complainant had agreed to purchase the third floor of a property of respondent no.2 for which he had paid Rs.2,00,000/ through two cheques and Rs.1,00,000/ in cash. The balance amount of Rs.13,00,000/ was to be paid later on. When the entire building was got constructed, the revisionist approached respondent no.2 qua the agreement between them for purchase of third floor but he started avoiding him. When the revisionist insisted, respondent no.2 disclosed to him that the site plan of the third floor was not sanctioned, thus, the construction was illegal. However, he entered into another agreement with him to sell the third floor of his another property for total consideration of Rs.17,00,000/ out of which respondent no.2 received Rs.13,00,000/ from the revisionist. But the respondent no.2 did not transfer the property to him. Although throughout the transactions, he misrepresented to the revisionist that he was the absolute owner of the entire property but later on he backed out the agreement stating that the said property was owned by respondent no.3. Respondent no.2 in connivance with respondent no.3 & 4 had cheated the revisionist by inducing him to make a payment of Rs.13,00,000/ for which the respondent no.2 had executed receipt, agreement to sell and also had received part payment by way of cheques.
3. It was contended that the investigations by the police are required as the documents which are in possession of the respondents are to be seized. It is a case of blatant cheating, committed by the respondents and the impugned order passed by the Learned Trial Court has led to miscarriage of justice by dismissing the application of the revisionist for registration of FIR against the respondents. In support of the contentions, reliance has been placed upon the judgments reported as [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
4. In the judgment cited as [PRECEDENT] (supra), the Hon'ble Allahabad High Court has held that order U/[SECTION] [ACT] is amiable to revisional jurisdictional. Thus, the present revision petition is maintainable as the impugned order is not interlocutory order.
5. In the judgment [PRECEDENT] (supra), the Hon'ble High Court has held : The provision of [SECTION] of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of such an information disclosing cognizable offence.
6. Thus, the law is well settled that by virtue of [SECTION] [ACT], the police is duty bound to register an FIR whenever a complaint disclosing a cognizable offence is received in the police station. However, in case the police refuses to register FIR then in such cases, a complaint can be preferred before the Magistrate. At that stage, [SECTION] [ACT] comes into being but the powers of Magistrate U/[SECTION] [ACT] are on different pedestal than of the police U/[SECTION] [ACT] The Magistrate is empowered U/[SECTION] [ACT] and also has discretion U/[SECTION] [ACT] to order an investigation or to conduct an enquiry himself U/[SECTION] [ACT] In the judgment [PRECEDENT] decided by the Hon'ble Delhi High Court on 25.03.09 it has been observed as follows :
The learned MM had the discretion to either forward the complaint to the police for registering an FIR or decide to direct the complainant's evidence to be recorded. The decision of the learned MM to opt for the latter course cannot, in the facts of the present case, be held to be erroneous or illegal.
7. In the judgment [PRECEDENT] (supra), the Hon'ble Supreme Court has laid down the guidelines : When a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under [SECTION] of the Code and proceed with the same in accordance with the provisions of [SECTION]. The other opinion available to the Magistrate in such a case is to send the complaint to the appropriate police station under [SECTION] for investigation.
8. In the present case, the Learned Trial Court has exercised the discretion to hold an enquiry by examining the revisionist/ complainant and his witnesses U/[SECTION] [ACT] Accordingly, there is no jurisdictional error in the order dated 21.02.10, passed by the Learned Trial Court.
9. The judgment cited as [PRECEDENT].
(supra) is distinguishable from the facts of the present case as the matter was remanded back to the Learned Trial Court to reconsider the application moved U/[SECTION] [ACT] In the judgment [PRECEDENT] is distinguishable from the facts of the present case as in that case, the Magistrate had ordered for registration of FIR U/[SECTION] [ACT] and the guidelines relating to the powers of the Magistrate U/[SECTION] and [SECTION] [ACT] have been laid down.
10. In view of the above discussion, the revision petition is dismissed. Trial Court Record be sent back along with copy of this order. Parties to appear before the Learned Trial Court on 05.07.10. Revision file be consigned Record Room.
ANNOUNCED IN THE OPEN COURT ON 09.06.10.
[ENTITY]/ASJFTC (Central) Tis Hazari Courts: Delhi [ENTITY] vs. State & Ors.
09.06.10.
4:30 PM Present : Revisionist in person.
Vide order announced of even date on separate sheets, revision is dismissed. Trial Court Record be sent back along with copy of the order. Parties to appear before the Learned Trial Court on 05.07.10.
Revision file be consigned Record Room.
[ENTITY]/ASJFTC (Central) Tis Hazari Courts: Delhi