Dheeraj Shrivastava and Another vs Santram and Another

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Cr.P.C. for quashing the order dated 25.09.2012, whereby it was directed to register the FIR against the petitioners u/s 420/34 of IPC. The brief facts of the case are that non-petitioner No. 1 has filed the application u/s 156(3) of Cr.P.C., alleging that petitioner No. 1 is doing the business of plotting and has taken Rs. 7 lacs for purchasing a house from complainant at Gwalior. The wife of the petitioner No. 1 Sangeeta, who is petitioner No. 2, was working with non-petitioner No. 1 at District Hospital, Bhind as Staff Nurse. She told to the complainant that his husband is doing the business of property dealing and if he wishes he will arrange a good house in Gwalior. Upon which he went to Gwalior and met petitioner No. 1 Dheeraj, where he looked a house, which suits him and after dealing, the sum for purchasing the house was agreed to Rs. 17,50,000/- and thereafter the token amount of Rs. 50,000/- vide cheque was given at Gwalior. It is further alleged that petitioner No. 1 has also assured the non-petitioner No. 1 that he will arrange for loan for some amount, therefore, he again gave a cheque of Rs. 3,50,000/- on 04.01.2012 and Rs. 3,00,00/- on 27.03.2012. After receiving the cheques petitioner No. 1 did not fulfill his words and the house, which he wants to purchase could not be settled. The non-petitioner No. 1 repeatedly asked the petitioner No. 1 to fulfill his promises but petitioner No. 1 stopped talking and switched off his mobile and even did not return his money, therefore, he has filed an application u/s 156(3) of Cr.P.C. and also made a complaint to the Supdt. of Police that authorities are not registering the case against the petitioner, therefore, he has filed a private complaint in the Court of CJM, Bhind, whereby learned CJM has directed the SHO Kotwali, District Bhind to register the case u/s 420/34 of IPC.

It is submitted by the learned counsel for the petitioner, that the order passed by the learned trial Court for registration of the FIR against the petitioners is totally arbitrary and against the settled position of law. It is further submitted that the respondent/complainant has given Rs. 6,50,000/- to the petitioners but dealing cannot take place, therefore, petitioner No. 1 has returned the amount of Rs. 6,50,000/- to the complainant. After giving the cheque to the petitioner No. 1 the complainant took blank cheques from the petitioners and after receiving the amount of Rs. 6,50,000/- the complainant did not return the cheques and son of the complainant has filed the private complaint before the JMFC, Gwalior u/s 138 of Negotiable Instrument Act, in which son of the complainant has mentioned the same cheque numbers of which the complainant u/s 156(3) of Cr.P.C. was filed, which shows the malafides of complainant and his son, therefore, registering the FIR against the petitioners is against the process of law, hence prayed for quashing of the direction given by the JMFC to the police for registration of the FIR.

Learned counsel for the respondents supported the impugned order and submit that there is no forged ground to quash the order.

In view of the submission of the learned counsel for the parties, I have perused the record.

It is not disputed that the transaction was agreed between the petitioners and complainant that the house situated at Amkho be sold to the complainant for consideration of Rs. 17,5000/-. It is not disputed that the respondent/complainant has paid an advance through cheque of Rs. 50,000/- dated 04.12.2012, second cheque of Rs. 3,50,000/- dated 21.01.2012 and third cheque of Rs. 3,00,000/- dated 27.03.2012 were given by the complainant/respondent. As per the averments of the complainant petitioners have assured that they will arrange a loan of Rs. 11 Lacs from the bank but inspite of repeated request petitioners have not executed the sale deed. Thereafter respondent/complainant asked the petitioners to refund the amount then on 05.05.2013 cheque of Rs. 3 Lacs and cheque of Rs. 4 Lacs on 07.05.2012 were given to the respondent/complainant. When cheques were submitted to the bank by the complainant it was returned back with an endorsement that there is insufficient funds. The respondent/complainant has lodged the report and also made the complaint to the superior Officers of the police and on enquiry CSP Bhind has found the offence of cheating and forgery, inspite of it no case has been registered against the petitioners.

From perusal of Annexure P/4 it appears that this receipt has been said to be executed by the complainant/respondent after receiving Rs. 6,50,000/- from the petitioner Dheeraj Shrivastava. However, it is not signed by any witness.

Annexure P/5 reveals that this complaint is filed by the son of the respondent/complainant against the petitioner Dheeraj Shrivastava alleging that on 05.05.20012 and 07.05.2012 Dheeraj Shrivastava has given cheque of Rs. 3,00,000/- and Rs. 4,00,000/- respectively and the cheque bearing No. 005710 dated 08.05.2012 and cheque bearing No. 005711 dated 09.05.2012 were presented to bank, same has been dishonored. It is pertinent to mention that receipt (Annexure P/4) dated 09.05.2012, which is said to be given by Santram on receiving a cash of Rs. 6,50,000/- and the cheque bearing No. 005710 dated 08.05.2012 and cheque bearing No. 005711 dated 09.05.2012 have given by petitioner. Had the cash was paid on 09.05.2012 why the cheque bearing No. 005710 dated 08.05.2012 and cheque bearing No. 005711 dated 09.05.2012, there was no necessity to issue cheque bearing No. 005710 dated 08.05.2012 and cheque bearing No. 005711 dated 09.05.2012

From perusal of the order passed by the learned CJM, Bhind, it appears that before directing the police to register the FIR he has not ensured that why inspite of being complaint was made by the respondent/complainant to the police station as well as to the superior Officers, enquiry was held and CSP, Bhind has recommended for registration of the case, even then case has not been registered instead of ensuring that what action has been taken by the police station. CJM, Bhind has directed the police to register the FIR. This approach of learned CJM cannot be held to be in consonance with the guidelines issued in the case of Ramyash Tiwari Vs. State of M.P., T, which are as under:-

(i) Whenever a Magistrate is called upon to pass orders u/s 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complaint. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant u/s 154(3) of the Code.

(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him. Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders.

(iii) The Magistrate, when approached with a complaint u/s 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report u/s 202 of the Code.

(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code, when an application u/s 156(3) of the Code is also filed along with a complaint u/s 200 of the Code, if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code.

Therefore, in view of the above the order passed by the CJM, Bhind is hereby quashed. It is directed that the learned CJM may call the enquiry report of CSP, Bhind and after taking into consideration and by providing opportunity of hearing to the respondent/complainant shall pass an order afresh on the application u/s 156(3) of Cr.P.C. preferred by the respondent/complainant.

With the aforesaid, petition stands disposed of.