RAJESH JAIN Vs. STATE N CT OF DELHI

JUDGEMENT

(1.) THIS Criminal Revision Petition has been filed by the petitioner against the order dated 06. 08. 2009 passed by Learned Metropolitan Magistrate, New Delhi in C. C. No. 1084/jm/2009 whereby the application filed by the petitioner under Section 156 (3) of the Code of Criminal Procedure (Cr. P. C.) was dismissed by the learned metropolitan magistrate by observing that in the facts of this case there is no need to direct police investigation before recording the statement of the complainant and his witnesses in support of the complaint which has been filed under Section 200 of the Cr. P. C. The relevant observation made by the Trial Court in this regard reads as under: in this order I shall be only dealing with the application under section 156 (3) Cr. P. C. of the complainant. As is clear from the above noted facts revealed from the complaint that the present case involves a sale transaction wherein the property in question was allegedly agreed to be sold to the complainant by the accused persons for Rs. 30 lacs, in pursuance of which the complainant allegedly had made a payment of Rs. 8,51,000/- to the accused persons. It also transpires from record that a recept-cum-agreement dated 29. 02. 2008 was also executed between the parties, however, the factum of the same was flatly denied by the accused persons in their reply to the legal notice issued on behalf of the complainant. From the above noted facts, it is clear that all the evidence which is required by the complainant to prima facie show that the accused persons have cheated him, if the allegations of complainant are prima facie believed to be true, is within the reach of the complainant. Since the evidence required to show prima facie commission of offence of cheating by accused persons against the complainant is within the reach of the complainant, accordingly, then keeping in view of mandate of precedent delivered by the High Court of Delhi speaking through hon'ble Mr. Justice R. C. Chopra (as he then was) in the case of M/s Skipper beverages Pvt. Ltd. Vs. State 2001 (4) A. D. (Delhi) 625, wherein it has been laid by his lordship in clear terms that Magistrate should not pas orders under section 156 (3) Cr. P. C. mechanically without judicial application of the mind and further observed that the power under Section 156 (3) Cr. P. C. ought to be exercised only in cases where allegations are serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact, I am of the view that no specialized investigation by the police or any other like agency is required in the present case since almost all the documentary proof is within the reach of the complainant. The factum of the payment made to the accused by complainant can also be prima facie proved by the complainant by producing the witnesses as named by him in his complaint at the pre-summoning stage. Henceforth, no directions under Section 156 (3) Cr. P. C. are called since no purpose would be served by rendering the direction for lodging an FIR and consequent investigation by the Police. The application under Section 156 (3) Cr. P. C. is dismissed.

(2.) IT has been submitted on behalf of the petitioner that in the facts of this case it was necessary to direct police investigation by exercising the powers available with the magistrate under Section 156 (3) Cr. P. C. as there was a necessity to conduct specialized investigation such as collecting of voice test etc. Reference has been made to the following judgments. i. Mohd. Yousuf Vs. Afaq Jahan and Anr 1 (2006) SLT 120 ii. Lallan chaudhary and Ors. Vs. State of Bihar and Anr. VII (2006) SLT 408

(3.) I have given my thoughtful consideration to the submissions made by the petitioner. I have also gone through the orders passed by the Magistrate as well as the complaint filed under Section 200 Cr. P. C. by the petitioner.