IN THE COURT OF SH DINEH KR. SHARMA ADDL.SESSIONS JUDGE: DELHI. CRIMINAL REVISION NO.90/2007. S C BHARGAVA SON OF SH AVINASH CHANDRA BHARGAVA R/O D/55, KALKAJI, NEW DELHI-110019. PETITIONER VERSUS 1. STATE. THROUGH SHO DESHBANDHU GUPTA ROAD KAROL BAGH, NEW DELHI. 2. SMT SUKHAM KAUR W/O SH SARANJIT SINGH. 3. SHRI SARANJIT SINGH SON OF LATE SH NAND SINGH, 4. MASTER PRANVAT SINGH S/O SHRI SARANJIT SINGH. ALL RESIDENTS OF : 2/54 , DESHBANDHU GUPTA ROAD, KAROL BAGH, NEW DELHI. RESPONDENTS. ORDER:
1. The revisionist has approached this court being aggrieved of that Learned Metropolitan Magistrate declined the request of the complainant to exercise his discretion under [SECTION] [ACT], for sending the case to the police for investigation. Learned Metropolitan Magistrate did not exercise the jurisdiction primarily on the ground that entire evidence is within the possession of the complainant. Learned Metropolitan Magistrate relied upon the judgment passed by the High court cited as M/s Skipper Beverages P. Ltd. Vs. [ENTITY] 2002 LJ NOC 333 (Delhi).
2. Trial court record was summoned and I have perused the same.
3. The plea of the learned counsel for the revisionist is that Learned Metropolitan Magistrate has proceeded on a wrong assumption that the entire evidence to be produced by the complainant is in his own possession.
4. Briefly stated the facts as stated are that petitioner entered into an agreement for development of the property number 244, DBG Road, Karol Bagh in the year 1987 with respondent no.2 acting as Natural Guardian of respondent no. 4 i.e. her minor son at that time. Respondent no. 3 is husband of respondent lno.2 and father of respondent no.4. It was represented that respondent no.4 became the owner of this property by virtue of a Will executed by one Smt. [ENTITY], who was the sole and exclusive owner of the above stated property. The petitioner has alleged that at the time of this agreement certain tenants were in possession of the above said property. The legal representative of [ENTITY] who was the original owner of the property in the question were also in possession of certain portion of the property . The petitioner has stated that it was represented that property is free from all kinds of disputes and litigations. The petitioner paid a sum of Rs. 21 lacs to one [ENTITY] i.e. one of the tenant in the above said property at the instance of respondents, for getting the possession of the portion in his possession. This payment was made in June, 1989. A sum of Rs. 1 lac as security was also paid on 27.02.87 at the time of entering into the agreement. The revisionist has submitted that later on it transpired that one [ENTITY] son of Late [ENTITY] was in possession of the front portion of ground floor of the property. The petitioner states that subsequently [ENTITY] died in the year 1996 and on an inquiry made by the complainant, it was transpired that Sh [ENTITY] and [ENTITY] son of [ENTITY] had already filed a suit before the Hon'ble High Court of Delhi for partition as co owners thereof and stay was granted by Hon'blecourt on 14.03.88l for the property being sold or transferred in any manner, against respondent no. 4 through his natural guardian i.e. respondent no.2 for dealing with the property in any manner. The grievances of the petitioner is that despite this stay order, the respondents made the complainant to pay certain amount to the tenants in the name of handing over the possession. Allegedly the amount paid by the petitioner has not been returned back. The plea of the petitioner is that he came to know about the stay granted by the Hon'ble High Court of Delhi only in the year, 2007.
5. There cannot be any dispute as to the settled proposition that power under [SECTION] [ACT] has to be exercised judicially and not in mechanical manner. We all are bound by the directions given in M/s Skipper Beverages P. Ltd. Vs. [ENTITY] (supra) wherein it was directed that if the complainant himself is in possession of the evidence to be produced before the court, the matter should not be referred for investigation to the police.
6. Learned counsel for the revisionist has relied upon Suresh Chand Jain Vs. [ENTITY] of M.P. And another (2001) 2 Supreme Court Cases, 628; [PRECEDENT]'; [ENTITY] of West Bengal & ors. Vs. Babu Chakraborty AIR 2004 Supreme Court 437; [PRECEDENT]; H S Bains vs. [ENTITY] AIR 1980 Supreme Court 1883; [PRECEDENT];
7. It is a settled proposition that the facts of each case should be seen in its own perspective.
8. This is not a stage where we can go into the falsity or truthness of the allegations made by the complainant. It requires probe. The complainant wants it to be investigated by the police as he cannot produce the entire evidence, to prove the offence committed by the accused persons . The allegations are that respondents made the complainant to pay certain amount knowing fully well that they are not competent to transfer the property in any manner. I consider that this probe may include that what transpired between the respondents and the person to whom the payment was made by the petitioner, and it may be difficult for the complainant to prove this aspect.
9. In these circumstances, I consider that the discretion exercised by the Learned Metropolitan Magistrate in declining the request of the complainant for sending the matter for investigation is not proper. Hence the order dt. 06.09.2007 is set aside.
10. Let the complaint be sent to the SHO, Police Station DBG Road, for investigation. SHO is directed to investigate the matter and to file the report, as per law.
11. With these observations , the revision petition is accepted. Trial court record be sent back with the copy of this order. Revision file be consigned to record room. Revisionist is directed to appear before the learned trial court on 05.11.2007.
ANNOUNCED IN THE OPEN COURT ON 25. 10.2007.
([ENTITY]) [ENTITY] JUDGE, DELHI.
25.10.2007.
Present :- Counsel for the revisionist .
APP for the [ENTITY].
Vide order announced of even date on separate sheets, revision is hereby allowed . Trial court record be sent back with the copy of this order. Revision file be consigned to record room. Revisionist is directed to appear before the learned trial court on 05.11.2007.
([ENTITY]) ASJ/DELHI.
25.10.2007.