Delhi High Court
Bela Banerjee & Ors. vs Deputy Commissioner Of Police & ... on 7 February, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: February 07, 2020
+ W.P.(CRL) 379/2020 & Crl.M.A. 2832-33/2020
BELA BANERJEE & ORS. ..... Petitioners
Through: Mr. Abhinav Sharma, Advocate
Versus
DEPUTY COMMISSIONER OF POLICE & ORS. ... Respondents
Through: Mr. Jamal Akhtar and Mr.
Amanpreet Singh, Advocates for
Mr. Rahul Mehra, Standing
Counsel (Criminal) for the
respondents No.1 to 3/State
Mr. Amit Mahajan, Mr. Olson Nair
& Ms. Mallika Hiremath,
Advocates for respondents No. 4 to
6/ Enforcement Department with
SI Ravinder
Mr. Mridul Jain, Special Public
Prosecutor for respondent No.
7/CBI
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
JUDGMENT
BRIJESH SETHI, J (Oral)
1. The petitioners herein represent the home buyers of the project
"Shubhkamna Advert TechHomes" being developed by M/S Shubjkamna
Buildtech Pvt. Ltd. in Sector 137, Noida, Uttar Pradesh, who claim to
have been defrauded by the builder in collusion with the banks and were
sold already mortgaged flats/project and allege that the entire money to
the tune of Rs.1972 crores collected by the builder has not been used for
construction of project/flats but has been diverted and siphoned off to
other companies creating personal assets. At the behest of complainants,
FIR No. 66/2017, under Sections 420/409/120B IPC, was got registered
at Economic Offences Wing (EOW), Delhi against the accused persons.
2. Vide this petition, petitioners are seeking a direction for
constitution of a special investigation team for expeditious investigation
by the Enforcement Department under the Prevention of Money
Laundering Act, 2002 or in the alternative to transfer the investigation to
a specialized agency i.e. Central Bureau of Investigation (CBI).
3. Notice.
4. Mr. Jamal Akhtar, Advocate for respondents No. 1 to 3; Mr. Amit
Mahajan, Advocate for respondents No.4 to 6 and Mr. Mridul Jain,
Advocate for respondent No.7, accept notice.
5. Learned counsel appearing for petitioners submits that the present
case involves complex financial transactions and the home buyers are
being coerced by the banks, who are in possession of their cheques, to
either pay the EMIs or to face proceedings under Section 138 of the
Negotiable Instruments Act. It is submitted by learned counsel for the
petitioners that the present case affects a large number of home buyers
who have been defrauded by the fraudulent real estate transactions but the
accused are still at large and have not been arrested and police has not
given any reason for the same. The petitioners are said to be aggrieved
with the manner in which investigation in this case has proceeded, as
within a span of 6 to 7 months, three Investigating Officers have been
changed/ transferred which is to the detriment of the petitioners.
6. Learned counsel for the petitioners further submits that at present
the case is being investigated by the EOW, who has failed to ascertain the
roles of banks, India bulls etc. and therefore lacks a comprehensive
understanding of the present case and that the Hon'ble Supreme Court in
a similarly situated case of home buyers in Amarapali case, had directed
the Enforcement Directorate (ED) to investigate and fix the liability,
therefore, investigation of this case be also transferred to Enforcement
Directorate (ED).
7. On the other hand, learned counsel appearing on behalf of
respondent/State submits that charge sheet in this case has already been
filed and further investigation in this case is in progress. Learned counsel
appearing for respondent/State further submits that petitioners have an
alternate and efficacious remedy and therefore, this writ petition does not
lie.
8. Heard.
9. After considering the rival submissions advanced on behalf of
counsel representing both the sides, I find that an alternative efficacious
remedy is available to the petitioners as they can approach the Magistrate.
The Hon'ble Supreme Court in Sakiri Vasu vs. State of Uttar Pradesh
& Ors, (2008) 2 SCC 409 has categorically held as under:-
"10. It has been held by this Court in CBI & another vs.
Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that
no one can insist that an offence be investigated by a
particular agency. We fully agree with the view in the
aforesaid decision. An aggrieved person can only claim that
the offence he alleges be investigated properly, but he has no
right to claim that it be investigated by any particular agency
of his choice.
11. In this connection we would like to state that if a person
has a grievance that the police station is not registering his
FIR under Section 154 Cr.P.C., then he can approach the
Superintendent of Police under Section 154(3) Cr.P.C. by an
application in writing. Even if that does not yield any
satisfactory result in the sense that either the FIR is still not
registered, or that even after registering it no proper
investigation is held, it is open to the aggrieved person to file
an application under Section 156 (3) Cr.P.C. before the
learned Magistrate concerned. If such an application
under Section 156 (3) is filed before the Magistrate, the
Magistrate can direct the FIR to be registered and also can
direct a proper investigation to be made, in a case where,
according to the aggrieved person, no proper investigation
was made. The Magistrate can also under the same provision
monitor the investigation to ensure a proper investigation."
10. In view of the Hon'ble Supreme Court's decision in Sakiri
Vasu (Supra), this Court finds that petitioners have an alternate and
efficacious remedy of approaching the Magistrate under Section
156(3) Cr.P.C. seeking a direction to the Investigating Agency for
effective and expeditious investigation.
11. With observations as aforesaid, this petition and applications
stand disposed of.
(BRIJESH SETHI)
JUDGE
FEBRUARY 07, 2020
r
