COMMISSIONER OF POLICE Vs. DEVENDER ANAND

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 13.01.2017 passed by the High Court of Delhi in Writ Petition (Crl.) No. 299 of 2016, the original respondents - appellants - Commissioner of Police and Others have preferred the present appeal.

(2.) That respondent No. 1 herein - original complainant entered into an agreement to sell in respect of house situated at WZ-1179, Plot No. 11, Rani Bagh, Shakur Basti, Delhi with respondent Nos. 2 to 3 herein for a consideration of Rs.54 lakhs. That the agreement to sell, general power of attorney etc. were executed and the entire amount of consideration of Rs.54 lakhs was paid to the agreement sellers. According to respondent No. 1 - original complainant, subsequently on 31.07.2013, he learnt that the said property had been mortgaged to Andhra Bank when a notice by the said bank was affixed on the property. According to respondent No. 1 - original complainant, thereafter he was compelled to settle the claim of Andhra Bank to the tune of Rs.16,93,059/- for release of the mortgaged documents. Respondent No. 1 - original complainant also paid the registration charges of Rs,7,81,941/- for registration of the sale deed in his favour. That, thereafter he lodged a complaint with the Karol Bagh police station against respondent Nos. 2 and 3 herein for the offence under Section 420/34 of the Indian Penal Code alleging, inter alia, that though the property was put as a mortgage with the Andhra Bank, the same was not disclosed to him and without disclosing the same the property in question was sold. Therefore, it was the case of respondent No. 1 - original complaint that he was cheated by respondent Nos. 2 and 3 herein. That a preliminary inquiry was conducted on the said complaint by the Sub-Inspector of the Police posted at the Karol Bagh police station. According to the complainant, on 20.05.2015, the Sub-Inspector submitted his report that a prima facie offence under Section 420/34 IPC is made out. He sought permission to register a case under Section 420/34 IPC for further investigation. According to the complainant, the SHO concurred with the aforesaid conclusion in his noting dated 21.05.2015 and put up the matter before the ACP concerned. According to the complainant, the ACP also concurred with the said conclusion in his noting dated 25.05.2015. According to the complainant, despite the above, the FIR was not registered and the same Sub-Inspector Yogender Kumar of Karol Bagh police station started a fresh process of preliminary inquiry on the same set of facts. He concluded that since the complainant had given his consent to the registration of the sale deed and discharge of the liability of the bank, even though the said mortgage as revealed to him on 31.07.2013, therefore, no police action is required. The said file noting was concurred by the SHO with the diametrically opposite view taken by the Sub-Inspector Yogender Kumar earlier. The ACP also concurred with the view that only a dispute of civil nature has arisen and that a complaint be filed. It appears that thereafter the matter was placed before the Additional DCP who also concurred with the subsequent view that no case is made out against the accused, vide his noting dated 07.08.2015. That the said view was carried by the DCP/C and JCP/CR as well.

(3.) We have heard the learned counsel appearing on behalf of the parties at length. We have also considered the material on record.