* 1 * W.P. 2798.2010 20.1.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2798 OF 2010 AKRUTI City Ltd ......Petitioner V/S. Shri. Mishrimalji Baxiramji Jain & 7 Ors. .....Respondents * * * * Ms. Poonam Ankleshwariya, adv.for the petitioner. Mr. A.S. Shitole, APP for State. CORAM : Smt. R.P. SondurBaldota, J. DATED : 20th January, 2011. P.C. : 1. The petitioner herein filed a private complaint under Section 420 read with Section 34 Indian Penal Code against M/s. Balaji Enterprises and its 9 partners. On 25th January, 2008 the learned Judicial Magistrate First Class, in whose court the complaint was filed, recorded the statement in verification of the petitioner and issued process against the firm and its partners. Respondents no.1 to 7 to the petition are original accused nos. 4 to 10. They filed an application at Exhibit.12 seeking discharge in the case. That application was allowed by the * 2 * W.P. 2798.2010 20.1.2011 learned JMFC by his order dated 30th August, 2008 and the respondents discharged as per Section 245(2) Criminal Procedure Code. The petitioner challenged the order of discharge by preferring Criminal Revision Application to the Sessions Court which also came to be dismissed on 13th August, 2010. Therefore, the petitioner has approached this Court challenging the order of discharge of the respondents. 2. The facts of the complaint stated in brief are that, the complainant-company is engaged in the business of construction and development project. In the year 2005, it was approached by original accused nos.2 and 3-the partners of accused no.1 representing that the firm is the owner of the property situate at Plot no.247/2 admeasuring 2970 sq.mts and 426.06 sq.mts out of final Plot no. 247/1 at Village- Panchapakhadi, Taluka-District-Thane. They had purchased the property and except for the 10 tenants listed in the agreement, there were no encumbrances. The accused made them thus believe that they were the owners of final Plot no. 247/2 and further that the Thane Municipal Corporation had sanctioned plans for consuming 3672.24 sq.mts of FSI for commercial premises and also granted commencement certificate for construction dated 24th February, 2005. Believing the representations made by accused nos. 2 and 3, the Company agreed to purchase the land for the consideration of Rs.6.5 crores. Accordingly, agreement for sale * 3 * W.P. 2798.2010 20.1.2011 was executed on 30th October, 2005 alongwith a declaration. At that time, the petitioner paid a sum of Rs.6,20,00,000/- to the firm. The balance amount of Rs.30,00,000/- was to be paid subsequently. It appears that thereafter on 27th June, 2006 Thane Municipal Corporation revoked the sanctioned plan as some of the obligations in getting the plan sanctioned had been not complied with and there was a dispute as regards the sub-division of the property. According to the adjoining Laxman Nagar Co-operative Housing Society, the sub-division of Plot no. 247 into 3 plots was done without their consent and they lodged objection with the City Survey Office. After holding an enquiry, the City Survey Officer cancelled the property card issued in respect of Plot no.247/2 on the basis of which order, Thane Municipal Corporation cancelled the sanctioned plans. The petitioner alleges in the complaint that the accused had made false representations and got the plans approved from Thane Municipal Corporation by loading residential FSI instead of commercial FSI on the property. They had thus cheated the petitioner. 3. The respondents to the petition, original accused nos.4 to 10 contended in their application that the petitioner had suppressed material facts from the court. The agreement executed between the parties on 30th October, 2005 was a development agreement and did not create any interest in the property for the petitioner. Further, the * 4 * W.P. 2798.2010 20.1.2011 petitioner had insisted upon engaging its own architect and other experts for satisfying itself to the feasibility and viability to the project of development. Infact the sanctioned plans had been cancelled on account of the defaults committed by the petitioner for non-compliance with condition no.22 of the commencement certificate. The petitioner also suppressed from the Court that the accused had agreed to refund the amount to the petitioner. As such, there was no mens rea to cheat the petitioner. Thus, it was a purely civil dispute. In any case, as per the complaint itself, if there was any misrepresentation it was by accused nos.2 and 3 alone. The complaint makes no allegations whatsoever individually against the respondents. 4. After considering the rival contentions, the learned Judicial Magistrate First Class accepted the submissions of the respondents and allowed their application. This order came to be upheld by the Sessions Court. 5. Ms. Ankleshwariya, the learned counsel for the petitioner, submits that, the Courts below failed to appreciate that once a Magistrate takes cognizance and directs issuance of process, it would imply that the Magistrate was of the opinion that there were grounds for proceeding further and that it would follow that he was satisfied at the stage of issuing process that the complaint was not groundless. Therefore, unless * 5 * W.P. 2798.2010 20.1.2011 there is some additional material produced before the Court, consideration of an application for discharge would amount to reviewing one’s own order for which there is no provision under the Criminal Procedure Code. She also submits that the learned Sessions Judge had dealt with the Revision Application challenging the order of discharge in a very cursory manner. The order disposing off the Revision Application does not state reasons for upholding the order of the learned Judicial Magistrate First Class. Ms. Ankleshwariya, relies upon 2 decisions of Single Judge, Bench of our High Court in Raybhan Hanwanta Bhadnge & Ors. V/s. The State of Maharashtra & anr. reported in 2009 (2) Bom.C.R. (Criminal) page 3 and Luis De Piedade Lobo V/s. Mahadev Vishwanath Parulekar & another delivered in Criminal Revision Application No. 21 of 1983 decided on 5th August, 1983. 6. Under Section 244 Criminal Procedure Code, in any warrant case instituted otherwise than on a police report, after issuance of process, when the accused appears before a Magistrate, the Magistrate is required to proceed to hear the prosecution and take such evidence as may be produced in support of the prosecution. Section 245(1) provides that if upon taking on evidence referred to in Section 244 the Magistrate considers, for reason to be recorded, that no case against the accused has been made out, which if unrebutted would warrant his conviction, the * 6 * W.P. 2798.2010 20.1.2011 Magistrate shall discharge him. Sub-Section 2 of Section 245 provides that nothing in the section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if for reasons to be recorded by Special Magistrate, he considers the charge to be groundless. This would show that there are atleast two stages at which an application for discharge can be made before completion of evidence. The first stage is even before recording of evidence referred to in Section 244 and the second stage is after recording of part of the evidence. This very view has been taken by this Court in the case of Luis De Piedade Lobo (supra) relied upon by the petitioner. The relevant observations at paragraph-5 of the judgment reads as follows : 5. It is no doubt true that Section 244, Cr.P.C. makes it “ incumbent upon the Magistrate to take all such evidence as is produced in support of the prosecution at the stage of the inquiry. It is also true that sub-section (1) of Section 245, requires, for an order of discharge be made, the taking of the evidence referred to in Section 244. Therefore, it may appear that the submissions of Mr. Usgaoncar are correct. And it is so to some extent. In fact sub-section (2) of Section 245, specifically provides that nothing in the section i.e., in sub-section (1), shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. The expression at any “ previous stage of the case”, occurring in sub-section (2) of Section 245, unmistakenly and undoubtedly shows that even before recording of the evidence referred to in Section 244, the Magistrate can discharge the accused if he considers, for reasons to be recorded, the charge to be groundless. In other words, the provision of sub-section (2) of Section 245 embodies an exception to the general rule laid down in Sections 244 and 245(1), Cr.P.C. I * 7 * W.P. 2798.2010 20.1.2011 am fortified in this view by the decision of the Himachal Pradesh High Court in the case of Gopal Chauhan V/s. Smt. Satya 1979 Cri. L.J. 446, wherein it has been observed that sub-section (2) follows sub-section (1) of Section 245 which speaks about the discharge of the accused on consideration of the evidence recorded under Section 244, and that the language of sub-section (2) of Section 245, clearly indicates a situation where the accused is required to be discharged even before the evidence is recorded. Similar view has been taken by the Supreme Court, though in respect of Sections 252 and 253 of the old Cr.P.C.” The learned Single Judge thereafter drew distinction between two stages, particularly in view of the contention that the order of issuance of process is required to be passed by the Magistrate only after he is satisfied that the complaint is groundless. He held that a case may arise where the Magistrate, per-incuriam, issues process and in such a case the Magistrate undoubtedly can exercise the powers conferred by Section 245(2) Criminal Procedure Code without recording any evidence. For that purpose, each case has to be looked into the light of its circumstances and except for a case when process was issued per- incuriam, atleast some additional evidence has to be brought on record, so as to enable the Magistrate to act on the exercise of the powers vested in him by Section 253(2) Criminal Procedure Code and discharge the accused after process was issued against him. This view has been fully relied upon in second decision of Raybhan Hanwanta Bhadnge & Ors (supra) relied upon by Ms. Ankleshwariya. Therefore, there is no need to * 8 * W.P. 2798.2010 20.1.2011 separately consider the second decision. 7. The facts of the present case show that the order of issuance of process was passed per-incuriam i.e. without considering the fact that there were no specific allegations made against the respondents and no role had been attributed towards any of them. It was also contended that though they are the partners in accused no.1 firm alongwith accused nos.2 and 3 against whom specific allegations have been made, the respondents cannot be held vicariously liable for the acts of respondents no.2 and 3. It is obvious from the proceedings that these two aspects of the matter had been completely ignored by the learned Magistrate while passing the order of issuance of process. Therefore, it was possible for the learned Magistrate to consider the application for discharge even before recording of any evidence under Section 244 Criminal Procedure Code and without production of some additional evidence. In that circumstance, I find no infirmity with the orders of the courts below. The petition is dismissed. [SMT. R.P. SONDURBALDOTA, J]