The dismissal of complaints against the builder by the Illaqa Magistrate rendered the filing of the complaint against the petitioner a misuse of process of law. Additionally, no cognizable offence was made out against the builder, absolving the petitioner of any offence under Section 166A IPC.

JUDGMENT

Arvind Singh Sangwan, J. - Prayer in this petition is for quashing of criminal complaint bearing No.173 dated 02.09.2015 under Section 166A of the Indian Penal Code, 1860 (for short, "IPC") and the summoning order dated 06.10.2015, passed the Judicial Magistrate First Class, Gurgaon.

2. Brief facts of the case as set up in the complaint are that the complainants Joginder Singh and Rajendra Kumar Goel have stated that they had purchased property/built up flats from their builder (name of the builder not disclosed in the entire complaint), in Sushant Lok- 2 and 3 in Sector 57, Gurgaon.

3. The allegations in the complaint, which is filed against the petitioner, who was the then Station House Officer, Police Station Sector 56 Gurgaon, are that the builder of the complainants had given certain assurances like providing of constructed swimming pool in the bungalow, community centre, a club and legalised electricity connection. On coming to know that their builder has not provided the facilities as agreed, the complainants filed a complaint on 02.08.2015(Annexure P2), relied upon in para No.4 of the complaint dated 02.09.2015 against the Directors of M/s Ansal Buildwell Limited, Rigoss Estate Networks Private Limited and Aadharshila Towers Private Limited, to the SHO Police Station Sector 56, Gurgaon, highlighting that the aforesaid persons/Directors, with intention to cheat and defraud the public at large had committed various illegal acts.

4. In the complaint, it is stated that in the year 2007-08, the complainants read an advertisement on the website www.ansalabl.com and saw hoarding in Sector 57 Gurgaon, that the builder is offering bungalows with a swimming pool on the terrace. It is further alleged in this complaint that the facilities offered in the advertisement were in fact found to be false as the swimming pool on the terrace was not constructed as per the buildings plan sanctioned by the District Town Planning Department. The electricity connection was not obtained in a legalised manner from Dakshin Haryana Bijli Vitran Nigam Limited (DHBVNL) and the common area meant for parks was grabbed and illegally constructed office site by their builder.

5. In the complaint, it is further stated that after the aforesaid complaint dated 02.08.2015 was given to the petitioner/accused, being SHO of the area but he has not registered the FIR and has misused his power and thus, has committed an offence punishable under Section 166A IPC.

6. It is further stated in the complaint that in view of the judgment of Hon'ble Supreme court in the case of "Lalita Kumari vs. Govt.of U.P.and others", (2013) 4 Crimes (SC) 243, the petitioner was bound to register a case and the petitioner has failed to perform his duty. A copy of the circular dated 10.05.2013 issued by the Home Ministry, Government of India, issuing guidelines to the Police Department that they are duty bond to register the FIR, in respect of the complaints which disclose cognizable offences is also relied upon as an annexure with this complaint.

7. Thereafter, the complaints recorded their preliminary evidence. Complainant No.2 appeared as CW1 and stated that he has made a complaint Ex.CW1/1 dated 02.08.2015 to SHO Police Station Sector 56, Gurgaon, which discloses cognizable offences of fraud and forgery against their Builder M/s Ansal Limited. But the petitioner being the SHO has not registered the FIR.

8. Similarly, complainant No.1 appeared as CW2 and also stated on the similar lines that their builder has committed fraud with them and despite a complaint made to the SHO, no FIR was registered.

9. The trial Court, thereafter passed a summoning order dated 06.10.2015, the operative part of which reads as under:-

"I have heard Sh. Y.K. Goel, learned counsel for the complainant and gone through the case file very carefully.

In the present case the allegation against SHO Amit Kumar has been levelled under Section 166 IPC. Therefore, before proceeding further, perusal of Section 166- A