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2019 DIGILAW 173 (PNJ)

Amit Kumar v. Joginder Singh & Ors.

2019-01-15

ARVIND SINGH SANGWAN

body2019
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. 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 is necessary. 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 is necessary. Section 166A IPC provides as under: "166A Public Servant disobeying direction under law Whoever, being a public servant, (a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or (b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or (c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509, shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine. On perusal of said provision it has been found that if any public servant disobeys any direction as provided under law then he shall be liable under Section 166A. The counsel for complainant has submitted that whenever any cognizable offence is disclosed to police, police is duty bound to register the FIR. Reasonableness or creditability of information is not a condition precedent for registration of a case. The condition that is sine qua non for regarding FIR under section 154 of Code is that there must be information and that information must disclose a cognizable offence. It has been further submitted that the provision of Section 154 of Code is mandatory and concerned officer is duty bound to register case on the basis of information disclosing a cognizable offence. If discretion/option or latitude is allowed to police in matter of registration of FIRs it can have serious consequences of public order situation and also adversely affect right of victims including violating their fundamental right to equality. If discretion/option or latitude is allowed to police in matter of registration of FIRs it can have serious consequences of public order situation and also adversely affect right of victims including violating their fundamental right to equality. In support of his arguments the counsel for the complainant has put reliance upon the judgment of Hon'ble Supreme Court of India in Lalita Kumari vs. Government of U.P. and other (2013) 4 Crimes (SC) 243. It has been further submitted that the Home Ministry of India vide a circular dated 10.05.2013 has issued mandatory directions to the police departments of all the states that the police officials are duty bound to register the FIR in respect of the complaint which discloses cognizable offence. On perusal of the said circular it has been found that in the said circular it has been mentioned that: "It should be clearly instructed that failure to comply with the instruction to register FIR in respect of information about the cognizable offence will invite prosecution of the police officer under Section 166 A of the IPC for an offence specified under Section 166A or departmental action or both." Now on perusal of the said provision as well as circular it has been found that it is mandatory for police to register FIR if any complaint disclosing cognizable offence has been made to police. If police does not register FIR despite disclosure of cognizable offence in the complaint, the concerned official will be liable under Section 166 A IPC. Now in the said scenario, in the present case, what is to be seen is that whether a complaint disclosing cognizable allegations was made to SHO Amit Kumar or not. On perusal of complaint Ex.CW1/1 it has been found that the offences of cheating, forgery, theft, misappropriation etc.were levelled against M/s Ansal Buildwell Ltd. Through its Managing Director Mr.Gopal Ansal and Vice President Mr.K.K.Tripathi. Meaning thereby in the complaint cognizable offences were mentioned by complainant. Moreover, on perusal of Ex.CW2/A it has been found that Assistant Draftman office of DTP Gurgaon has also given statement in court that in bunglow no.254-1 Flourence Marvel Sushant Lok-III, Sector 57, Gurgaon, in the sanctioned plan there is no swimming pool. The builder has mentioned in brochure about swimming pool but no permission has been granted by DTP. This statement also indicates towards the offence of cheating. The builder has mentioned in brochure about swimming pool but no permission has been granted by DTP. This statement also indicates towards the offence of cheating. Meaning thereby the offences of cognizable nature were specifically mentioned in the complaint and the police was bound down to lodge the FIR. Reasonableness or creditability of information was not a condition precedent for registration of the case. Reliance upon Lalita Kumari case (supra). Now as far as the point of summoning accused is concerned, it has been held in Gurdeep Kaur vs. Balbir Singh & others 2005 (2) RCR (Cr.) 205 that it is established law that at the time of summoning of accused in the complaint case trial Magistrate is supposed to look into allegations as leveled in the complaint as averred at the time when preliminary evidence is led. Trial Magistrate has to be prima facie, satisfied as to whether there are sufficient grounds for proceedings against the accused named in the complaint or not. In Smt.Nagawwa vs. Veeranna Shivallngappa Konjalgi AIR 1947 SV 1976, and Sardar Singh vs. State of Punjab 1998(2) RCR (Criminal) 634 it has been held at the stage of issuing the process the Magistrate is mainly concerned with allegations made in the complaint or the evidence led and he is only to be prima facie satisfied whether there are sufficient ground for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion on the merit or demerits of the case. Further, it has been held in M/s Ansal Properties and Infra Structure Limited vs. Haryana State Pollution Control Board 2012 (3) RCR (Criminal) 138 that Magistrate has to see is whether or not there is sufficient ground for proceeding against the accused. The Magistrate is not to weight the evidence so meticulously as she/he is required to do during the course of trial of main case. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which be kept in view; at the stage of framing of charges. The Magistrate is not to weight the evidence so meticulously as she/he is required to do during the course of trial of main case. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which be kept in view; at the stage of framing of charges. In addition to this in Lajwanti vs. State of Haryana 2014 (1) RCR (Criminal) 929 it has been held that at the stage of issuing process in a criminal case, the Magistrate is only to be satisfied whether there are sufficient ground for proceeding against the accused and not that the evidence should be sufficient to convict the accused or even prima case for framing of charges. On the basis of reasons recorded above, the court is of the considered view that a prima facie case has been established by the complainants against accused. There exists sufficient material on record for the purpose of summoning accused under Section 166A IPC. Accordingly, the accused SHO Amit PS Sector 56, Gurgaon be summoned to answer the allegations under Section 166A of Indian Penal code for 31.10.2015 on filing of process fee, registered cover and copies of complaint etc.within 7 days. 10. The petitioner appeared before the trial Court and was released on bail. Thereafter, the petitioner has filed the present petition praying for quashing of the impugned complaint and the summoning order. The proceedings before the trial Court were stayed by this Court vide order dated 10.12.2015. 11. Reply, by way of affidavit of respondent No.2 has been filed in the Court and the same is taken on record. 12. Learned counsel for the petitioner has argued that the complainants have concealed certain facts from the notice of the trial Court, which have a direct bearing on the case. 13. It is submitted that the complainants have filed a complaint against the Directors/owners of M/s Ansal Buildwell Limited, Rigoss Estate Networks Private Limited and Aadharshila Towers Private Limited, i.e.COMI/13150/2015 No.183/08.10.2015 for fraud, cheating and manipulation of records. The said complaint was filed under section 156 (3) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.), praying for issuance of a direction to the SHO concerned to take appropriate action against the accused persons. 14. The said complaint was filed under section 156 (3) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.), praying for issuance of a direction to the SHO concerned to take appropriate action against the accused persons. 14. Learned counsel for the petitioner submits that on 08.10.2015, the following order was passed by the Judicial Magistrate First Class, Gurgaon: Present:Sh.Yatish Kumar Goel counsel for the complainant Complaint produced before me being Ilaqa Magistrate. It is checked and registered. Complaint has been perused. The counsel for complainant has been herd. In view of the allegation leveled against the accused and nature of offence alleged, I am not inclined to send the complaint to the SHO concerned under section 156(3) of Cr.P.C., 1973 Hence, the prayer made by the complainant stands declined. To come up on 21.11.2015 for preliminary evidence of complainant at own responsibility. xx xx xx xx Present:Sh. Yatish Kumar Goel counsel for the complainant File taken up again. Ld.counsel for the complainant has made a statement that he does not want to continue with the present complaint and want to withdraw the same on the ground that he wants approach commission of police and Superintendent of Police. In view of the above, the present complaint is hereby dismissed as withdrawn. File be consigned to the record room. 15. Learned counsel thus, submits that once the Illaqa Magistrate has opined that he is not inclined to send the complaint to the SHO concerned, under section 156(3) of Cr.P.C., 1973 and directed the complainant to lead preliminary evidence but the complainant opted to withdraw the said complaint. 16. Learned counsel for the petitioner submits that thereafter, again, both the complainants filed another complaint on same set of allegations against the same accused persons, under the provisions of Section 156(3) Cr.P.C., 1973 that their complaint be sent to the SHO Police Station Sector 56, Gurgaon, for registration of a case and investigation. 17. The said complaint was again dismissed by the trial Court/Illaqa Magistrate, vide order dated 15.10.2015. The operative part of the order reads as under: "Application produced before me being illaqa magistrate. It be checked and registered. Application has been perused. The counsel for applicant has been heard. The counsel for applicant has submitted that the application under section 156(3) Cr.P.C., 1973be allowed and complaint be sent to the concerned SHO for registration of FIR. The operative part of the order reads as under: "Application produced before me being illaqa magistrate. It be checked and registered. Application has been perused. The counsel for applicant has been heard. The counsel for applicant has submitted that the application under section 156(3) Cr.P.C., 1973be allowed and complaint be sent to the concerned SHO for registration of FIR. On perusal of case file it has been found that on the basis of same allegation levelled against same accused, the same application along with complaint was filed by complainant/applicant under section 156 (3) Cr.P.c., 1973 on 08.10.2015 which was dismissed after perusing the complainant as well as after hearing the arguments advanced by the counsel for complainant and the case was fixed for 21.11.2015 for preliminary evidence. However, when the application under section 156(3) Cr.P.C., 1973was dismissed immediately the counsel for complainant withdrew his compliant. Now in the said scenario, it is necessary to mention here that once an application under section 156 (3) Cr.P.C., 1973 containing the same allegations against the same accused filed by the same complainant has been dismissed, whether the other application can be allowed. Whether the order passed by the criminal court can be reviewed. The answer is in negative. A criminal court has not been empowered to review its order. Once an application under section 156(3) on the basis of same allegations against same accused filed by same applicant has been dismissed, the second application filed by same applicant against same accused on the basis of same allegation can not be allowed as it would amount to review/recall the order which is not permissible in the eyes of law. Therefore, the court is of the considered view that this application under section 156(3) Cr.P.C., 1973is not maintainable and deserves to be dismissed. Now as far as the question of taking cognizance of the offences mentioned in the application is concerned, it is necessary to mention here that counsel for applicant has himself submitted that he has filed only an application under section 156(3) Cr.P.C., 1973 He has not filed any application under section 200 Cr.P.C., 1973 Therefore, no cognizance can be taken. Hence, in the said scenario, the present application is hereby dismissed. File be consigned to record room after due compliance." 18. Hence, in the said scenario, the present application is hereby dismissed. File be consigned to record room after due compliance." 18. Learned counsel for the petitioner has thus submitted that the complainants while leading their evidence or at time of passing of summoning order have failed to brought it to the notice of the trial Court that they were availing the remedy against the accused person in accordance with law and the Illaqa Magistrate, on two occasions had refused to refer the complaint to SHO concerned for registration of the case and investigation. Therefore, the petitioner being the SHO of the area, if from the bare perusal of the complaint has not found that any cognizable offence is made out, as he well within his power was acting in accordance with law and because no prima facie case under Section 166(A) IPC was made out therefore, the petitioner has not disobeyed the directions under the law. 19. Learned counsel for the petitioner has further argued that the complainants has even concealed in the complaint that in fact M/s Ansal Buildwell Limited had entered into an agreement with one Atul Bansal on 10.05.2005 (Annexure P4) and had allotted a villa in his name and later on the said allottee sold the property to one Manish Goyal and from there the complainants purchased the property as second purchaser. 20. Learned counsel for the petitioner submits that there is a privity of contract as per the letter of allotment between the builder and the buyer and for violation of any terms and conditions, it is provided in agreement that any dispute between the parties shall be subject to the jurisdiction of the Courts at Delhi or New Delhi. 21. Learned counsel further submits that as per condition No.3 of the allotment letter, it is specifically provided that the building plans under the scheme are tentative and are yet to be sanctioned and if any changes are made by the sanctioning authorities in the lay out scheme or building plans, no claim will be raised by the House Buyer. 21. Learned counsel further submits that as per condition No.3 of the allotment letter, it is specifically provided that the building plans under the scheme are tentative and are yet to be sanctioned and if any changes are made by the sanctioning authorities in the lay out scheme or building plans, no claim will be raised by the House Buyer. It is therefore argued that the complaint, which has been filed on the ground that the builder has constructed swimming pool without sanctioned site plan, released electricity connection without approval of DHBVNL and has encroached upon the common area/public passage, does not constitute a cognizable offence as it was an inter se civil dispute between the builder and the buyer and the buyer had civil remedies for the same. 22. Learned counsel for the petitioner has further argued that while leading the preliminary evidence, the complainants except for their statements and the complaint dated 02.08.2015, placing on record, has not led any prima facie evidence to show that the petitioner has committed the offence punishable under Section 166-A IPC. 23. In reply, learned counsel for respondent No.2-complainant has not disputed that the two complaints filed by the complainants against the builder before the Illaqa Magistrate praying for a direction to the SHO to register a FIR were dismissed and no further appeal or revision was filed. 24. Learned counsel for the complainants has further submitted that in the complaint dated 02.08.2015, which form basis of the impugned complaint filed against the petitioner, the complainants have highlighted that the builder has constructed the swimming pool without there being an approved site plan. Secondly, the building has been constructed illegally on the open area/parks and thirdly, the electricity connections have been released without there being a prior sanction of the DHBVNL and even ground water is being misused by the builder. It is, thus submitted on behalf of the complainants that from the bare perusal of the complaint, it is apparent that the builder has induced the complainants on false promise to purchase the bungalow and partway their money, which was later on found to be a false inducement and thus, the builder has committed a case of cheating and forgery with the complainants. Therefore, the petitioner being the SHO of area was bound to register an FIR and investigate the case. Therefore, the petitioner being the SHO of area was bound to register an FIR and investigate the case. It is submitted that since the petitioner has failed to obey the directions under the law, the trial Court has rightly summoned the petitioner under Section 166-A IPC. 25. Learned counsel for the complainants has further relied upon Lalita Kumari's case (supra), wherein, it has been held by the Hon'ble Supreme Court as under: (33) In addition, Mr. Shekhar Naphade, learned senior counsel contended that insertion of Section 166A in IPC indicates that registration of FIR is not compulsory for all offences other than what is specified in the said Section. By Criminal Law (Amendment) Act 2013, Section 166A was inserted in Indian Penal Code which reads as under:- Section 166A-Whoever, being a public servant.- (a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or (b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or (c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under Section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, Section 509 shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to fine." Section 166A(c) lays down that if a public servant (Police Officer) fails to record any information given to him under Section 154(1) of the Code in relation to cognizable offences punishable under Sections 326A, 326B, 354, 354B, 370, 370A, 376, 376A 376B, 376C, 376D, 376E or Section 509, he shall be punished with rigorous imprisonment for a term which shall not be less than six months but may extend to two years and shall also be liable to fine. Thus, it is the stand of learned counsel that this provision clearly indicates that registration of FIR is imperative and police officer has no discretion in the matter in respect of offences specified in the said section. Thus, it is the stand of learned counsel that this provision clearly indicates that registration of FIR is imperative and police officer has no discretion in the matter in respect of offences specified in the said section. Therefore, according to him, the legislature accepts that as far as other cognizable offences are concerned, police has discretion to hold a preliminary inquiry if there is doubt about the correctness of the information. 34) Although, the argument is as persuasive as it appears, yet, we doubt whether such a presumption can be drawn in contravention to the unambiguous words employed in the said provision. Hence, insertion of Section 166A in the IPC vide Criminal Law (Amendment) Act 2013, must be read in consonance with the provision and not contrary to it. The insertion of Section 166A was in the light of recent unfortunate occurrence of offences against women. The intention of the legislature in putting forth this amendment was to tighten the already existing provisions to provide enhanced safeguards to women. Therefore, the legislature, after noticing the increasing crimes against women in our country, thought it appropriate to expressly punish the police officers for their failure to register FIRs in these cases. No other meaning than this can be assigned to for the insertion of the same. 35) With this background, let us discuss the submissions in the light of various decisions both in favour and against the referred issue. Xx xxx xx xx xx 111) In view of the aforesaid discussion, we hold: i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. It must disclose reasons in brief for closing the complaint and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above. 26. After hearing learned counsel for the parties, I find merit in the present petition for the following reasons: (a) The complainants have not disputed the fact that against their builder, they have filed two criminal complaints before the Illaqa Magistrate, on the same set of allegations praying for a direction under Section 156(3) Cr.P.C., 1973 to the SHO for registering an FIR and investigating the case. Both the complaints were dismissed by the Illaqa Magistrate on 08.10.2015 (Annexure P6) and 15.10.2015 (Annexure P7). Both the complaints were dismissed by the Illaqa Magistrate on 08.10.2015 (Annexure P6) and 15.10.2015 (Annexure P7). As noticed above, a specific finding has been recorded in both the orders that in view of the allegations levelled against the accused(builder), and the nature of offence alleged, the Court was not inclined to send the complaint to SHO concerned. Therefore, the allegations against the petitioner that he has failed to exercise his power under Section 154 Cr.P.C., 1973 to register an FIR against the builder of the complainants are apparently illegal and not sustainable as the petitioner being SHO of area cannot form an opinion other than formed by Court/Illaqa Magistrate. (b) Learned counsel for the complainants, during the arguments could not dispute the fact that the aforesaid orders passed by the trial Court, declining to refer the complaints to the SHO concerned under Section 156(3) Cr.P.C., 1973 have attained finality and therefore, in the absence of any such further action taken by the complainants against their own builder, the filing of the present complaint under Section 166- A IPC against the petitioner who was the SHO of the concerned area is nothing but a misuse of process of law. However, considering the fact that no cognizable offence is made out against the builder, the petitioner by not registering the said FIR has not committed any offence which is punishable under Section 166-A IPC. (c) It is worth noticing here that in the entire impugned complaint, there is no mention of details of the builder. A perusal of the complaint dated 02.08.2015 given to the petitioner in the capacity of SHO, show that it was filed against the Directors of M/s Ansal Buildwell Limited, Rigoss Estate Networks Private Limited and Aadharshila Towers Private Limited, with the allegations that they have not raised the construction as per the approved site plan, released the electricity connection without the prior license given by the DHBVNL and certain area meant for public purpose has been encroached for constructing office. From a bare perusal of the complaint, no offence cognizable under the Indian Penal Code is made out as it is the own case of the complainants that as per the agreement between the complainants and the builder, they have purchased the property. From a bare perusal of the complaint, no offence cognizable under the Indian Penal Code is made out as it is the own case of the complainants that as per the agreement between the complainants and the builder, they have purchased the property. Needless to say that this fact is not disputed that the property was initially allotted in favour of one Atul Bansal, which was later on transferred to Manish Goyal on 12.02.2007 and thereafter the complainants purchased it on 02.12.2007 and there is a stipulation in agreement that if lay out plans are changed, the Buyer will have no claim. (d) The trial Court was not informed that the two complaints filed under section 156(3) Cr.P.c., 1973for same prayer were dismissed and therefore, had no occasion to look into the order dated 08.10.2015 and 15.10.2015. Therefore, in case, the aforesaid orders were brought on record of trial Court, it may not have formed an opinion summoning the petitioner. (e) In view of Lalita Kumari's case (supra), I find that after dismissal of complaint by the Illaqa Magistrate, if the petitioner being SHO of the area has not registered FIR on same complaint, finding that no cognizable offence is made out, the prosecution of petitioner in the impugned complaint is nothing but misuse of process of law. 27. For the reasons stated above, the present petition is allowed. The impugned complaint dated 02.09.2015 and the summoning order dated 06.10.2015, passed by the trial Court are hereby quashed. However, liberty is granted to the respondents-complainants to proceed against the builder, if so advised.