The main legal point established in the judgment is the emphasis on the modes of taking cognizance of a criminal offense under Section 190 of the Cr.P.C. and the need for the complainant to lead evidence before seeking registration of an FIR under Section 156(3) of Cr.P.C.

MOOL CHAND GARG, J

Oral

1. This Criminal Revision Petition has been filed by the petitioner against the order dated 12.08.2009 passed by Learned Metropolitan Magistrate, New Delhi in C.C. No.97/2009 whereby an application filed by the petitioner under Section 156(3) of the Code of Criminal Procedure (Cr.P.C.) has been dismissed vide order dated 12.08.2009.

2. Briefly stating the facts of this case are that the petitioner came to know that respondent No.3, who is a builder had been constructing an Apartment block namely Gaffar Apartments block in Village Satbari, Mehrauli, New Delhi and that those flats were nearing completion and were available for sale. In these circumstances, the petitioner entered into an agreement to purchase a flat from respondent No. 3 through respondent No. 4 for a total consideration of Rs.16,00,000/-. An amount of Rs.1,50,000/- was paid by the petitioner in advance. He also paid some more money to respondent No.3 towards commission etc. It is his case that later on the petitioner came to know that the said flat was sold by respondent No.3 to someother person. Thus, he wanted refund of his payment, which was not done by respondents No.3 & 4.

3. In these circumstances, the petitioner is stated to have filed a complaint before the S.H.O., P.S., Malviya Nagar for taking necessary action against respondents No.3 and

4. However, no action was taken. Thereafter, the petitioner filed an application under Section 156(3) Cr.P.C. before the learned ACMM, New Delhi for directing registration of a case and for investigating the circumstances alleging conspiracy between respondents No.3 and 4 in illegally detaining hard-earned money of the petitioner. The said application was dismissed by the learned Magistrate vide its order dated 12.08.2009.

4. I have gone through the order passed by the M.M. concerned. Some of the observations made by the trial Court in the impugned order read as under:

“Ld. Counsel for the complainant argued that to effect the recovery of the amount police investigation is required in this case hence this case is sent for investigation u/s 156(3) Cr.P.C.

Admittedly wife of the complainant Mrs. Geeta Bhatt filed the complaint before SHO concerned but this complaint has been filed by her husband Dr. V.P. Sharma. Record reveals that neither the complainant in the present complaint nor his wife Mrs. Geeta Bhatt in complaint to SHO has disclosed in whose name the flat was going to purchase from Abdul Gaffar. Admittedly payment through cheque was made from the account of the wife of complainant Mrs. Geeta Bhatt. Further agreement to sell has not been executed. The complainant also not specified the date when he had to get executed the sale deed. The amount paid by the complainant is of earnest money. The complainant has the witness and the documents in his possession. In my view the application seeking direction for police investigation is not entertainable, since applicant is possessed all the evidence and material to be produced in support of his complaint and for which I am placing reliance upon the authority in the matter M/s Skipper Briverage Pvt. Ltd. Vs. State cited in 2001 IV AD Delhi 265, rended by our own High Court. Further reliance can also be placed on the authority in the matter of Gulab Chand Upadhyay Vs. State of U.P. and others cited in 2002 (2) Crimes 488 and further in judgment held in Baldev Thukral Vs. State of Uttranchal cited in 2006 (1) Crimes 239.

Accordingly application of the complainant u/s 156(3) Cr.P.C. is disposed of. Complainant is directed to lead C.E. for 14.10.2009.”

5. I have heard the submissions made by the petitioner and find that there is no infirmity in the order passed by the Magistrate because by filing this application the petitioner wanted bypassing the process prescribed in the Cr.P.C. of moving a complaint under Section 200 Cr.P.C. and leading his evidence.

6. As per Section 190 of the Cr.P.C. there are three modes of taking cognizance of