1 3248.11 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3248 OF 2011 Audumber Narayan Akude & Anr. ...Petitioners Versus State of Maharashtra & Anr. ...Respondents ...... Mr.Prakash Naik with Mr.Pravin Kamble i/b Shaunak Satpute & Co. for Petitioners. Mrs.M.M.Deshmukh, A.P.P. for Respondents. ...... CORAM:- A.M.KHANWILKAR AND R.G.KETKAR, JJ. DATED:- NOVEMBER 29, 2011. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mrs.Deshmukh, A.P.P. waives notice for respondents. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. By this Petition, direction is sought against the respondents to take cognizance of complaint dated 11th January, 2010 made by the Office bearers of “Juni Mill Plot Dharak Kalyankari Dakshata Samiti” Exhibit `A’ 2 3248.11 to the Petition and to register FIR in respect of the said complaint. The said complaint was sent to the Police Commissioner, Solapur as well as to Crime Branch and Senior Police Inspector, Fouzdar Chawdi Police Station, Solapur. It appears that on the basis of the said written complaint, preliminary inquiry was conducted by the Senior Police Inspector, who in turn, by his letter dated 17th March, 2011 informed the petitioner that the dispute is essentially a civil dispute, for which, no further action can be taken. In this backdrop, the petitioners have approached this Court by way of Petition Article 226 of the Constitution of India. 5. The primary issue that needs to be addressed is : whether the written complaint sent by the Office bearers of the Samiti dated 11th January, 2010 discloses cognizable offence? Indeed, it is well established position that even if the written complaint discloses commission of cognizable offence, it is open to the Police Officer to first conduct preliminary inquiry in excepted category of cases. As regards the present complaint, in our opinion, it is not possible to take the view that the case was covered under the excepted category so as to resort to preliminary inquiry. Assuming that it was covered under the excepted category to justify preliminary inquiry, the Senior Police Inspector has recorded statements of the affected persons who 3 3248.11 have reiterated the allegations in the written complaint, the question of concluding that it was a civil dispute does not arise. Going by the allegations in the written compliant itself, it is noticed that the case made out in the written complaint is that around 1100 persons relied on the representation made by Chairman and each of them entrusted amount of Rs. 30,000/- which was paid in lieu of allotment of plot to the extant of 1000 sq.ft. to each of them, from amongst the larger plot of land of old mill which was to be purchased jointly for and on their behalf out of their contribution. However, the Chairman surreptitiously utilised the said amount to purchase the plot in auction and thereafter created third party rights therein without giving any notice to any of the investors. That the allegations in the written complaint clearly spell out case of misappropriation and breach of trust committed by the Chairman. Inspite of clear allegations regarding offence of cheating, misappropriation and criminal breach of trust, it was not open to the Senior Inspector of Police to take the view that the dispute was essentially a civil dispute. It is well established position that the same set of facts can give rise to two different actions. In that, it can be a civil action as well as criminal action. 4 3248.11 6. Taking overall view of the matter, therefore, we are inclined to allow this Petition by directing the respondents to register FIR on the basis of the written complaint Exhibit A dated 11th January, 2010. Considering the fact that the preliminary inquiry was conducted by Police Sub-Inspector Mr.R.S.Sawantre, it would be appropriate that the cognizance in respect of the investigation be now taken by the Crime Branch, Solapur and after recording statements of the petitioners, register the FIR and proceed in the matter in accordance with law. 7. We make it clear that observations made in this decision is only for the limited purpose of considering whether it was open to the local police officer to refuse to register FIR inspite of disclosure of cognizable offence and written complaint Exhibit A to the Petition. All questions on merits are left open. 8. Petition disposed of on the above terms. (R.G.KETKAR, J.) (A.M.KHANWILKAR, J.)