Devi Singh Solanki vs State of Rajasthan and Others

M.N. Bhandari, J.—By this criminal misc. petition, challenge is made to the F.I.R. No. 110/2014 registered with Police Station -- Mathura Gate, Bharatpur for offence under sections 420 and 406 IPC.

It is stated that complaint under section 138 of the Negotiable Instruments Act, 1881 was filed. Learned Magistrate had sent the case for investigation by the police. It was by invoking provisions of section 156(3) Cr.P.C. Thereupon, an F.I.R. was registered for offence under sections 420 and 406 I.P.C., whereas, the complaint was for offence under section 138 of the NI Act for which F.I.R. cannot be registered. The prayer is accordingly made to quash the F.I.R. Reference of the judgment of the Andhra Pradesh High Court in the case of K. Mahadevan Vs. Y. Venkatesh and Another, and K. Mahadevan Vs. Y. Venkatesh and Another, has been given.

Learned counsel for respondent No. 2 complainant initially opposed the petition, however, challenge to the aforesaid was not opposed as the outcome of the quashing of the F.I.R. would be nothing but continuance of the complaint under section 138 NI Act.

In view of the facts given above, impugned F.I.R. is quashed. The complaint under section 138 of the NI Act shall proceed as per provisions of law. The court below failed to take notice of various provisions of the NI Act which includes section 142 of the NI Act to know as to how the matter has to proceed. The relevant paras of the judgment in the case of K. Mahadevan (supra) are reproduced hereasunder for ready reference-

"4. Under section 142 of the Negotiable Instruments Act, 1881, no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. That means, section 143(1) contemplates the filing of a private complaint only. This section does not give any indication to refer such a private complaint filed by the payee or the holder in due course to the police for investigation under section 156(3) of the Code of Criminal Procedure by the Magistrate before whom such a complaint is filed. In the case on hand the complaint filed by the petitioner was forwarded by the Magistrate to the police for investigation under section 156(3) of the Code of Criminal Procedure and after conducting investigation the police filed the charge sheet. It is a glaring defect in the procedure adopted by the Magistrate. In identical circumstances, in Y. Venkateswara Rao Vs. Mahee Handlooms Pvt. Ltd. and Others, this court held as follows (at page 207):

"As evidenced by section 142(a) of the Negotiable Instruments Act no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. In the present case, the case was taken cognizance of an a police complaint and, consequently, as rightly submitted by learned counsel for the petitioner, the complaint is not taken on file properly. In view of the provisions of section 142(a) of the Negotiable Instruments Act, the proceedings in CC No. 184 of 1991 on the file of VI Metropolitan Magistrate are quashed on and from referring the case by the learned Magistrate under section 156(3) of the Code and thereafter."

The complaint filed by the petitioner having been forwarded by the Magistrate to the police for investigation under section 156(3) and the police having filed the charge sheet after investigation and the Magistrate taking cognizance on the police charge sheet, it is a glaring defect in the procedure adopted by the learned Magistrate. When there is some glaring defect in the procedure or there is a manifest error on a point of law, the Supreme Court held in K. Chinnaswamy Reddy v. State of A.P., as follows:

"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal but this jurisdiction should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of section 439 (of the Code of Criminal Procedure, 1898) forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding of conviction."

There are other judgments on the issue which have been referred by learned counsel for the petitioner i.e. judgment of the Andhra Pradesh High Court in the case of Bandi Pandu Vs. Kola Balaji Varma and Another, , Delhi High Court in the case of "The Bhajanpura Cooperative Urban Thrift and Credit Society Ltd. versus Sushil Kumar", Crl. A. No. 972/2012, decided on 3.9.2014 and Orissa High Court in the case of S. Jayaswami and Another Vs. State of Orissa and Another, . Therein also, similar issue came up for consideration and decided by the courts therein holding that on a complaint under section 138 of the Negotiable Instruments Act, 1881, how the case should proceed.

With the aforesaid directions, petition is allowed.