Ashok Kumar and ors. vs Jaswant Rai and anr.

G. S. Chahal, J.

Ashok Kumar and others by means of this petition under Section 482 Cr.P.C. seek quashing of complaint dated 12391 (Annexure P1) and the order dated June 14, 1991 (Annexure P2) passed by Judicial Magistrate 1st Class, Ludhiana.

Respondent Jaswant Rai moved a complaint for offences under Sections 419, 420, 467, 468, 471, 477A read with Section 120B IPC. According to the averments Made in the complaint, Jaswant Rai, complainant, Ashok Kumar, and Surinder Kumar accused were real brothers and partners in four different firms under the name and style of Vijay Luxmi Wire Company; Jati Ram Narain Dass; Narain Electricals (India) and Udho Udyog. The Firm Udho Udyog consisted of Shiksha Rani, Usha Rani, Smt. Sham Kaur and the complainant as partners. The complaint had been ousted from the business and management of all the concerns regarding which he had initiated arbitration proceedings in the Court of Sh. G. K. Rai, Sub Judge, 1st Class, Ludhiana. The accused were in possession and control of the entire account books & assets of the partnership property. On May 17, 1990, the complainant sent a communication requesting accused No I to supply him the returns of wealthtax and incometax for the period March 31, 1985 to March 31, 1990. He also sought information about his saving accounts and details of the rents etc. This letter was sent under postal certificate, but the accused did not respond. He sent another letter on March 19, 1991 making a request to them for supplying him the copies of balance sheets for the period from Match 31, 1985 to March 31, 1990, pass books, cheque books, etc. so as to enable him to file incometax and wealthtax returns. This letter was also sent under postal certificate, but the accused did not supply him the documents. The complainant then approached the incometax authorities for seeking advice in the matter and he was accompanied by Ram Kumar Bedi Accountant. There he learnt that accused Nos. I to 4 in connivance with accused No 5 have forged the signatures of the complainant and filed a false return under his forged signatures. The complainant had never signed or filed any return before the incometax authorities. The accused have impersonated the complainant and prepared false accounts and used them as genuine and have also caused a wrongful loss to him.

The Judicial Magistrate 1st Class, Ludhiana passed the following order on this complainant :

"Present : Complaint with counsel.

The complainant is sent to SHO Police Station Divn. No. 6, Ludhiana for investigation and registration under section 156 (3) Cr.P.C.

Pronounced.

Dt. 14.6.1991., Sd/ Judicial Magistrate 1st Class, Ludhiana."

The learned counsel has urged that since the disputes had been referred to the arbitration, the criminal prosecution was not competent and further that the Magistrate had no powers to order registration of the case, but could only send the case for investigation under the provisions of Section 156(3) of the Code.

The matter referred to arbitration relates, to the dispute about the partnership business and has no concern with the matter of filing of the return, which is alleged to have been filed under the forged signatures of the complainant. The arbitration proceedings have in fact no bearing on the criminal proceedings relating to the forgeries complained of.

Section 156(3) of the Code under which the learned Magistrate had acted, provides as follows :

"156(3). Any Magistrate empowered under Section 190 may order an investigation as abovementioned,"

In Gopal Dos Sindhi and others v. State of Assam and another, AIR 1961 SC 986, their Lordships held that provisions of Section 190 of the Code do not mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of an offence and to quote :

"We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word may in section 190 to mean `must''. The reason is obvious. A complaint disclosing cognizable offence may well justify a Magistrate in sending the complaint under Section 16(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasion when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code."

After referring to the observations of Mr. Justice Dos Gupta in case of Supdt and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee. AIR 1950 Cal. 437. it was further observed :

"it would be clear from the observations of Mr. Justice Dos Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e .g., ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence."

No fault can thus be found with the order of the Magistrate when instead of taking cognizance himself, he forwards the complaint to the police for investigation under Section 156(3) of the Code. Exception is, however, taken to the order requiring a registration of the case in support of his arguments, Mr. Somesh Ojha has relied upon the observations of Bajaj, J. in Raghbir Singh v. State of Haryana, 1989(2) RCR 679 ; Smt. Champa Rani v. State of Punjab, 1990(3) RCR 577 and Sodhi J. in Rattan Amol Singh and another v. State of Punjab and another, 1989(1) Chandigarh Law Reporter 313, holding the view that the Magistrate is not competent to order registration of the case. Learned counsel for the respondent has pointed out Single Bench judgments in Hari Singh and ors. v. The State of Punjab and ors., 1986(1) RCR 555 and Vijay Kumar and ors. v. Kartar Singh, 1990(2) Recent Criminal Reports 202 : 1990(2) CLR 596 to the contrary. In these judgments, however, reference has not been made to Section 154 of the Cr.P.C. and I quote:

"154. Information in cognizable cases(1) Every information relating to the commission of a cognizable offence, if given orally to an officer incharge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under subsection ( (1) shah be given forthwith, free of cost, to the informant."

This section is mandatory and the police officer has to act on the information received with respect to the commission of a cognizable offence. In case he does not act on that information, subsection (3) gives the aggrieved party a right to give in writing the information to the Superintendent of Police and on that basis, investigation has to be carried out. Whenever information of a cognizable offence is given to the police, a case has to be registered. Adjudged from that angle, even if the Magistrate, while recording order Annexure P2 had not ordered for registration of a case, it was the duty of the police, who was primarily concerned with the matter of investigation to register the case and proceed with the investigation the order asking the registration of the case in Annexure P2 may at best be described to be surplusage, but will not vitiate the order of the Magistrate. find no illegality in the order Annexure P2. No case is made out for quashing the proceedings. The petition is hereby dismissed.