IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
Arun Saxena & Anr. -Petitioners
Versus
Today Homes & Infrastructure P. Ltd. & Ors. -Respondents
W.P. (CRL) 1645, 1660, 1664, 1679, 1666, 1678 of 2013 and Crl. M.A. 2775 & 19472; 2773 & 19110; 2774; 2770 & 19111; 2738; 2771 & 19113 of 2014
Decided On : 23-08-2018
The Court held that the Magistrate and the ASJ erred in rejecting the petitioners' applications under Section 156(3) CrPC, as the allegations made by the petitioners, if true, disclosed commission of cognizable offenses under Sections 406/420/468 read with Section 120B IPC. The Court directed the SHO to register separate FIRs forthwith on the complaints of the petitioners and to proceed with the investigation.
Fact of the Case:
The petitioners, who had invested in a mall project developed by respondent Nos. 1 to 3, filed complaints with the police alleging that they were induced to invest in the project by false representations made by the respondents, that the respondents failed to deliver possession of the shops/units to the petitioners as promised, and that the respondents leased out the petitioners' premises to a bogus company, respondent No. 4, without their consent. The police refused to register an FIR, and the petitioners filed applications under Section 156(3) CrPC before the Magistrate, seeking a direction to the police to register an FIR. The Magistrate and the ASJ rejected the petitioners' applications, holding that the allegations did not disclose commission of a cognizable offense and that the petitioners were in possession of the requisite evidence to pursue their complaint. The petitioners then filed the present petitions under Article 226 of the Constitution of India and Section 482 of the CrPC, challenging the orders of the Magistrate and the ASJ.
Finding of the Court:
The Court held that the Magistrate and the ASJ erred in rejecting the petitioners' applications under Section 156(3) CrPC. The Court observed that the allegations made by the petitioners, if true, disclosed commission of cognizable offenses under Sections 406/420/468 read with Section 120B IPC. The Court noted that the petitioners were not privy to the negotiations undertaken by the respondents with the intended lessees, and that they were not in a position to investigate on their own the reasons why the intended lessees backed out. The Court also noted that the petitioners had been left high and dry and with no satisfactory remedy, and that investigation by the police was essential to bring the offenders to justice. Accordingly, the Court directed the SHO to register separate FIRs forthwith on the complaints of the petitioners and to proceed with the investigation.
Issues: Whether the Magistrate and the ASJ erred in rejecting the petitioners' applications under Section 156(3) CrPC.
Ratio Decidendi: The Court held that the Magistrate and the ASJ erred in rejecting the petitioners' applications under Section 156(3) CrPC, as the allegations made by the petitioners, if true, disclosed commission of cognizable offenses under Sections 406/420/468 read with Section 120B IPC. The Court noted that the petitioners were not privy to the negotiations undertaken by the respondents with the intended lessees, and that they were not in a position to investigate on their own the reasons why the intended lessees backed out. The Court also noted that the petitioners had been left high and dry and with no satisfactory remedy, and that investigation by the police was essential to bring the offenders to justice.
Final Decision: The Court allowed the petitions and directed the SHO to register separate FIRs forthwith on the complaints of the petitioners and to proceed with the investigation.
1. The aforesaid writ petitions have been preferred by the aforesaid petitioners under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC) to assail:
(i) the common order dated 06.11.2012 passed by the learned MM-05, Patiala House Courts, New Delhi in CC Nos.218/1/2012 to 223/1/2012 and CC No.64/1/2012 on similar applications moved by the petitioners under Section 156(3) CrPC, whereby their said applications were rejected and the petitioners/complainants were granted opportunity to lead pre-summoning evidence to show that there is ground to proceed against the accused, and;
(ii) the order dated 01.08.2013 passed by the learned ASJ-01, Patiala House Courts, New Delhi in the criminal revisions preferred by the petitioners to assail the aforesaid common order dated 06.11.2012. All the criminal revisions-being Crl Rev Nos.23/2013, 10/2013, 8/2013, 24/2013, 11/2013, 80/2013 and 9/2013 were dismissed by the said impugned common order dated 01.08.2013.
2. The petitioners had preferred their respective applications under Section 156(3) CrPC with substantially the same following allegations:
(i) That the accused no.1 company, namely, Today Homes & Infrastructure Pvt. Ltd. (THIPL) in furtherance of their business started building a Mall in North Delhi named as “North Gate Mall”;
(ii) That respondent nos.2 and 3, Sh. V.K. Ghambir, Chairman cum M.D. of accused no.1 company and Sh. Arun Nayyar, Director of accused no.1 company assured them that the Mall being built by them would be state-of-the-art and that they had obtained all mandatory permissions/clearances to construct the Mall, which would be constructed strictly in conformity with the sanction plan;
(iii) That all of them were lured and induced by deliberate, intentional and wrongful inducements made by accused nos.1 to 3;
(iv) That they made knowingly false inducement/representations that the investors in the said project shall be given an assured monthly income, which would be guaranteed for at least a period of three years from the date of the fit out period;
(v) That the accused represented that they would lease out the areas in the Mall to reputed and established entities, who would pay the rentals to the owners/investors;
(vi) That they also assured that till the time the possession of the shops/areas bought by the investors are not given on lease to reputed brands, accused no.1 would pay the agreed monthly rent to the investors after deducting TDS;
(vii) That based on the said inducement and assurances, the petitioners had invested their hard earned savings and entered into their individual agreements-to-sell with the accused no.1 company;
(viii) That the agreements-to-sell entered into between the complainants and the accused provided that the rent would be exclusive of water, electricity and maintenance charges, which were payable by the lessees/brand owners who would take the portions of the constructed Mall of the complainants on lease;
(ix) That the accused also showed to the complainants various Letters of Intent (LOIs) and Memorandum of Understanding (MOUs) entered into by the accused in this regard, which showed that they had entered into agreements with famous brands qua the units/shops/areas agreed to be purchased by the complainants;
(x) That the Mall was to be completed latest by 01.07.2007 as per the agreement. However, the accused were not able to hand over the Mall/units in the Mall to the promised lessees/brand owners, and accused nos.1 to 3 deliberately and intentionally made unauthorized illegal construction in the Mall;
(xi) That they made extensions/deviations in the Mall without any authority/permission/sanction, and had also sold illegal areas to the naïve customers like the complainants;
(xii) That the accused failed to pay the promised and assured monthly return on the shops/areas booked by the c
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