THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL PETITION No.7207 of 2007 ORDER: Petitioner herein is the accused in C.C.No.974/2007 on the file of the Court of the II Metropolitan Magistrate at Cyberabad. He filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C) for quashing the above case on various pleas which I shall refer to infra. 2. This criminal petition was earlier dismissed by this court on 21.04.2010. The accused carried the matter to the Supreme Court in Crl.A.No.559/2011. The said appeal was allowed on 25.02.2011 and the matter was remanded to this court for fresh disposal. That is how this matter is again taken up. 3. It is the admitted case of both counsel that the complaint has been taken cognizance of by the trial court for offences punishable under Sections 420, 406 and 506 IPC. Hereinafterwards for convenience I shall refer to the parties as complainant and accused. The first contention raised by the counsel for accused for quashing the case is that in the complaint the complainant requested the trial court to refer the matter to police for investigation i.e. under Section 156(3) Cr.P.C but the trial court examined the complainant and his witness and registered the case and this amounts to acting beyond its jurisdiction. There is no force in this contention. It may be noted that the trial court i.e. a JFCM has always got the power and discretion either to refer the complaint to police for investigation or to take up the enquiry into it and decide about the question of taking cognizance and this is settled position. This apart it is mentioned in the complaint that the complainant earlier gave a report to the police but as the police did not take action he was constrained to approach the trial court. Thus this averment in the complaint must have also weighed with the trial court in directly taking cognizance of the case. Hence this first contention is rejected. 4. The second contention relates to the merits of the matter. The complaint averments disclose that there is a money dispute between the parties. The allegations in the complaint show that the accused who was acquainted with the complainant earlier borrowed a sum of Rs.65,000/- for the purpose of construction of his house and also took a loan of Rs.39,000/- from A.P. Mahesh Cooperative Urban Bank Limited, Malakpet, Hyderabad in the year 2000 agreeing to repay it in 35 monthly instalments for Rs.1350/- each. It is stated that the accused took this amount of Rs.39,000/- from the above Bank in the name of the complainant and ultimately paid 19 monthly instalments and defaulted subsequently and the balance was collected by the Bank from the complainant. It is also the case of the complainant that at that time the accused gave a promissory note and also a cheque but the amounts for which they were given are not mentioned in the complaint. 5. It is the further case of the complainant that thereafter at his request the accused gave 10 cheques drawn on Canara Bank, DLRL Extension Counter, Chandrayanagutta, Hyderabad to him for discharge of the above amount and subsequently only one cheque was encashed but not the others. It is stated that the accused did not pay the amount due but what amounts are due is not clear from the complaint. It is then stated that the complainant demanded the accused for repayment of the amounts due but there was no response from him. While matters stood thus, it is alleged that on 25.02.2007 the accused went to the house of the complainant and abused the complainant in filthy language and also threatened him with dire consequences including death for himself and his family members if the complainant makes a demand again for money. These are the allegations on which the complaint has been filed and in the complaint it is mentioned that the accused has committed the offences punishable under Sections 420, 406 and 506 IPC. 6. It will be seen from the record filed by the accused that the trial court examined the complainant K.V.Subba Rao and his witness K.Pradeep Kumar and recorded their statements on oath and after examining them it took cognizance of the case for the aforesaid three offences. The main plea of the accused is that the whole averments in the complaint would disclose that the transaction between him and the complainant is a money transaction and the complainant has to take civil action for recovery of money and a criminal prosecution does not lie. It is also alleged that in the earlier report given by the complainant to the police the complainant did not mention about the incidents relating to criminal intimidation and abuses and consequently the complaint case should be quashed. The learned counsel for the complainant on the other hand submitted that the complaint discloses the offences of cheating and misappropriation and also criminal intimidation and the incident of criminal intimidation has also been mentioned in the earlier report given to the police and it was only after police failed to take action the complainant filed the present complaint. He thus argued that there are no grounds to quash the case and it should be allowed to go on. 7. It may be noted that there are two parts/offences in the complaint. The first part relates to the alleged money transaction between the complainant and the accused and the amounts allegedly owed by the latter to the former and the denial by the latter about his liability to pay the amounts due. The second part relates to the criminal intimidation. Coming to the second part, it is the version of the complainant that on 25.02.2007 the accused came to the house of the complainant and abused him in filthy language and threatened him with dire consequences warning him that he would kill the complainant and his family members if the complainant again demanded the money. Basing on the second part the learned Magistrate took cognizance of the complaint for the offence under Section 506 IPC. The plea of the accused is that this incident relating to criminal intimidation is false and the complainant concocted this story to bolster up his case regarding the first part which only shows a civil liability. In this connection as already mentioned supra he pointed out that this date 25.02.2007 on which the offence of intimidation is said to have taken place is not mentioned in the report said to have been given by the complainant to the police and therefore the complaint should be quashed. There is no force in this contention. 8. It may be noted that the accused himself filed a copy of the complaint said to have been given by the complainant to the Station House Officer of Saroornagar police station. A perusal of this complaint would show that though the complainant has not given the date he stated that when he demanded the amounts from the accused the latter threatened him in filthy language and questioned him about the legal proceedings initiated or likely to be initiated and that he would with dreaded anti-social elements can physically harm the complainant. Thus it cannot be said that the police report is totally silent about the incident relating to criminal intimidation. 9. Now the learned Magistrate even according to the record filed by the accused examined the complainant and one K.Pramod Kumar and recorded their sworn statements and thereupon took cognizance of the complaint for the offences under Sections 420, 406 and 506 IPC. The copies of the said sworn statements are also filed and they would show that they contain material for the offence punishable under Section 506 IPC and therefore the learned Magistrate cannot be said to have committed any illegality in taking cognizance of the complaint for the said offence. The question whether or not the accused has committed the offence punishable under Section 506 IPC would now become a disputed question of fact which can be resolved only on evidence or in any enquiry which may be held if an application is filed for discharge by the accused. Thus it follows that insofar as the offence under Section 506 IPC is concerned this court cannot interfere in the matter under Section 482 Cr.P.C and the same has to be decided by the trial court. 10. Then coming to the offences under Sections 420 and 406 IPC relating to money transaction the trial court thought it fit to take cognizance for the said offences also. The learned counsel for the accused argued at length to show that the averments in the complaint even if taken as true do not attract the aforesaid two offences. It should however be noted that the reasons given by me supra would show that this court cannot interfere so far as the offence under Section 506 IPC is concerned. That being the position it will not be proper for this court to go into the question whether ingredients of offences under Sections 420 and 406 IPC are made out and even if that question is decided one way or the other still the case has to go on for the offence under Section 509 IPC. In the circumstances, I am of the opinion that it would therefore be better to leave this aspect to the trial court and it may decide the same on an application for discharge from the case which can be filed by the accused if he is advised to do so. 11. Accordingly for the aforesaid reasons this criminal petition is dismissed. It goes without saying that it shall be open for the accused to file an application for discharge before the trial court and if filed the trial court may decide the same without being influenced in any manner by this order. ______________________ N.RAVI SHANKAR, J 04-07-2011 CVRK