EN THE HOWBLE fflGH COURT OF CHHATTISGARH AT BILASPUR :c,^>' Cr.M.RNo. /2010 PETITIONER \^.;-- ^^ A-'"' 1. JanardanGupta,agedabout28years, S/o Pawan Gupta, R/o Gole Bazar, Police Station City Kotwali, Bilaspur, Distt. Bilaspur (C.G.) VERSUS RESPONDENTS 1. State of Chhattisgarh, through the police station City Kotwali, Bilaspur. 2. Anil Tahalyani, aged about 34 years, S/o Ramesh Tahalyani, R/o Prakash Hotel, GoleBazar, Bilaspur, Tah. and Distt. Bilaspur (C.G.) CRIMDSTAL MISCELLANEOUS PETmON UNDER ,<^ SECTION 482DF CRIMINAL PROEDURE CODE. ^'is"c%x S'/K~"'~" ^. f€^,^ i t ^gss^.1 HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'bte Shri Manindra Mohan Shrivastava. J. Petitioner Respondents Cr.M.P. N0.655/2010 Janardan Gupta Versus State of Chhattisgarh and Another (Criminal Miscellaneous Prtitfon under Sectfon 482 of the Code of Criminal Procedure) Present: - Shri Ravindra Agrawal, counsel for the petitioner. Shri Sushil Dubey, Govt. Advocate for the State/respondent No.1. Shri Ashish Shukla, counsel for respondent No.2. ORIffiR (Passed on 1_-12^010) Thte petition under Section 482 of the Cr.P.C. s directed against registration of.criminal case on thecomplaint of r^pondent No.2, by which, the Chief Judicial Magistrate has registered offence under Sectron 420, 467, 468 and 471 read with Section 34 of the I.P.C. against the petftioner. 2. Facts in brief are that the petitioner initially filed a complaint case against respondent No.2 alleging that the respondent No.2 had borrowed a total sum of Rs.2 Lakh cash on various occastons from the priitioner. Cheque was issued on 20-12-2008 for the sakl amount to the petitioner and when the petitioner deposited the cheque in his account, the same was dishonoured by the payee bank with an endorsement dated 12-01- 2(X)9 that the furids are insufficient. When the amount remained unpaid, the petitioner after giving notice to the respondent No.2 filed a complaint ^ case. In that case, respondent No.2 took the defence that a sum of Rs1 Lakh was taken by the respondent No.2 from Ajay Bole in the year 2007 and an agreement was also executed between them. A btank cheque was also given towards security for repayment. The sakl amount of Rs.lLakh has been retumed to Ajay Bole, but the blank cheque was not returned by Ajay Bole and the petitioner in colluskm with Ajay Bole utilized the blank cheque by writlng his name and amcunt of Rs.2 Lakh and thereafter produced the same in the bank for encashment. 3. On 26-06-2009, respondent No.2 filed an application under Section 156 (3) of the Cr.P.C. before the Chief Judkiial Magistrate, Bilaspur seeking direction to the Policeof Police Station City Kotwali, Bilaspur to register F.I.R. against the petitioner for the commissKm of offence under Section 420, 467, 471 and 120-B of the I.P.C. After investigation, the Poltee submitted a final report before the Magistrate on 05-10-2009 stating that no offence is found committed. Thereafter, the Chief Judteial IMagi^rate proceeded to record the statement of the complainant and after recording the yatement of the complainant, respondent No.2-the Chief Judtoial Magistrate rejected the complaint by holding that no case for taking cognizance of offence ^ainst the p^itiCTier is made out, vide orderdated 10-12-2009. 4. Aggrieved by the order of dismi^l of complaint, the respondent No.2 preferred Criminal Revision No.16 of 2010 and vkle order dated 15-03-2010, the revisional Court, finding that a case for registration of offence is made out, sd askle the order of Chtef Judteial Magistrate aral directed taking cognizance upon registration of a criminal case. 5. Assailing the correctness and validity of the aforesaid order, leamed counsel for the petitioner submitted that as the issuance of cheque and it's dishonour, is a subject matter of complaint case flled by the petitioner under Section 138 of the Negotiable Instmments Act against the respondent No.2, until and unless, a finding regarding tampering of the cheque or the same being forged, recorded in that proceedings, the petitioner could n<rt be prosecuted in a separate complaint filed by the respondent No.2 ^ainst Uie petitioner. The second submissjon of leamed counsel for the petitioner is Uiat without verifying from the originat or any report or genuineness of the cheque, no cruninal case could be registered against the petitioner and such r^istration is pre-mature. It is next contended by leamed counsel for the priitioner that the learned revisional Court ought to have appreciated that the complaint was filed by the respondent No.2 only to escape his liability and occasfon toenquire on such allegations whieh arise at the concluston of criminal pnyeedings under Section 138 of the Negotiable Instruments Act launched by the petitioner, and therefore, complaint filed by the respondent No.2 was cleariy frivolous. Leamed counsel for the petiUoner also contended with force and vehemence that the leamed Court below grossly erred in treating the application under Section 156 (3) of tte Cr.P.C. filed by the respondent No.2 as complaint. It is submitted that after investigation, if the Poltee submitted a report that no case is made out, the only course open for the respondent No.2 was to file separate complaint as provided under Section 200 of tte Cr.P.C. and was beyond the jurisdiction and competence of the Courts below to treat the ^f""^ ^ S-t \\ '6 application under Section 156(3) of the Cr.P.C. fited by the respondent No.2 as a complaint. It is lastly submitted that after the matter was remanded by the revisional Court vide its order dated 15-03-2010, the Magistrate was obliged under the law to record fresh statemente and coutd not have registered criminal case against the peUtioner. In support of his submission, learned counsel for the petitioner has reljed upon the ctecisfons in the case of Mohd. Yousuf vs. Afaq Jahan (Smt^ snd anottier, 2006 (1) SCC 627 smdRam^bhal Pandurao Hedau v. State ofGujarat, W10. Cr.L.J. 2441. 6. On the other hand, learned counsel appearing for respondent No.2 submitted that this petiti<Mi is misconceived inasmuch as the petitioner did not initially challenge the order dated 15-03-2010 passed by the Revisional Court in Criminal Revision No.16 of 2010. It was only after the Magistrate registered the offence, the instant petition has been filed. He further submitted that when the Potice submitted its report under Sectiwi 156(3) of the Cr.P.C. before the Magistrate and Magistrate then proceeded to record the statement of respondent No.2, no challenge was made by the petitioner to those proceedings. According to him, if the petitioner was aggrieved against the orders, proceedings whereby the Magistrate proceeded to record statement ofthe respondent No.2 treating his application as complaint, petitioner ought to have eesailed the same, which have n<rt been done, therefore, at this stage, the petitioner could not fall back to submit that the Magistrate could not have proceeded to record ttie stetement of respondent No.2 under Section 200 of the Cr.P.C. It is further submitted that the Magistrate was not required to .jSS'-3'- ^-'"-v. \ \ S. 'S 1i 8^-.." %• "tiw'^i^['vs\ • ^ \j^fy U^-y record any further statement and it was obliged under the law to register complaint in compliance of order dated 15-03-2010 passed by the Revisionat Court. Leamed counsel for the respondent No.2 also argued that from the order passed by the revisional Court, it would be ctear that a prima facie case for r^istration of criminal case was made out, and therefore, the proceedings could not be said to be the abuse the process of law nor it can be said that registration of criminal case resutted in miscarriage of justice. Leamed counsel for respondent No.2 placed refence upon the decision in the case R. P. Kapur v. Stete ofPunjcda, AIR 1WO SC 866, K. L E. Soclety & Ors. v. Slddalingesh, 2008 AIR SCW 1993. 7. Submission of learned counsel for the applicant that once the Police submitted a report before the Magistrate, the Magistrate could not have proceeded to take c^nizance and the onty course open for the non-applicant No.2 to fite a separate complaint, is comptetely misconceived in law. Under Section 190 of the Cr.P.C., the Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence. 8. Word "Complainfoccurring in Sectionia)(1)(a)hasbeendefined under Section 2(d) ofthe Cr.P.C. to mean any allegation made oratly or in writing to a Magistrate, with a view to his taking action under this Code, that some persons whether knpwn or unknown, has committed an offence, but does not include a police report. No form has been prescribed in which the complaint is required to be made nor is there any ^v ^ .^' >• specific provision in the Cr.P.C. or in the rules framed thereunder, as to how the criminal complaint has to be made. What has to be seen is whether the entire substance of the complaint pfima facie makes out an offence said to have been committed, or whether there is a ground to presume on the entire reading of the substance of the complaint that the offence is likely to have been committed. The requisites of the complaint are (a) An oral or written allegation; (B) That some person known or unknown has committed an offence; (C) It must be made to Magistrate and (D) It must be made with the object that he should take action. If the aforesaid ingredients are found orally or in writing in whatever form and whatever may be the heading or the title, the Magistrate is competent to take cognizance. All that is required that it should at least disctose that the accused had committed or omitted to do that partrcular act which is an offence and it must discl<»e the necessary facts whtoh prima fade constitutes an offence. Administration of criminal law Is more a matter of substance than of form and should not be allowed to be befogged by hair- splitting technicalities. The contents of the complaint filed by the non- appticant No.2 though styted as under Section 156(3) of the Cr.P.C. clearty disclosed that it was in substance a complaint. Having obtained report submitted to it by the Police, the Magistrate has all the authority under the law to take cognizanceof the complaint before it and proceed in accordance with the provisions contained in Chafrter-XV ofthe Cr.P.C. on the basis of the facts disclosed in the application under Section 156 (3) of the Cr.P.C. Further submission of leamed counsel for the applicant is that the Magistrate coutel not have proceeded to take cognizance untess a separate petitjon tttled "Complaint under Section 200 of the Cr.P.C." was separately filed by the non-applkant No.2 therefore, deserves to be rejected. Moreover, it has to be seen that after receipt of the police report, the Magistrate proceeded to take cognizance and recorded preliminary statement ofthe complainant though after recording statements, the Magistrate dismissed the complainl. 9. Other submission of leamed counsel for the appticant that once a complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act was instituted by the appticant, complaint of non-applicant No.2alte9ing commission of offence under Section 420 of the I.P.C. coutd not be entertained nor any cognizance could be taken, does not merit acceptance. Leamed counsel for the appltoant is not correct in submitting that unless there is a report with regard to cheque being forged, no prosecution could be launched. Once from the contents of the complaint and the preliminary statements recorded under Section 200 of the Cr.P.C., a case for proceedings was made out, comptaint could not be thrown only because proceedings under Section 138 of the Negotiable Instruments Act have been instituted. When the allegations under the complaint are very specific that the applicant and the other co- accused forged the blank cheque and presented the same for being honoured, as to whether the cheques were actuatly forged or not is a matter of enquiry during trial in complaint. The last submission of learned counsel for the applicant that even after, orders were passed by the leamed revisional Court, the Magistrate coukl not have taken cognizance without recording further statement of complainant witn^ses, has to be 'c<rb rejected at the threshold. After recording the preliminary statements, the ^4agistrate dismissed the complaint holding that the no case for proceedings was made out. The said order having been challenged in revision, the revisional Courtexamined the material available on record, recorded a finding that from the complaints and statemente on oath recorded befbre the Magistrateasalso from the documents placed with the complaint, a prima facie case of misuse of cheque is made out. The Magistrate has committed no illegality in registering an offence against the applicant and it was not necessary for the Magistrate to record further statement before registering an offence in view of the order passed by the revisional Court. 10. In the result, l do not find any illegality in the order passed by the learned revisional Court nor in the order of the Magistrate. The petition has no merit and is therefore deserve to be dismissed and is accordingly dismissed. Sd/- Manindra Mohaa Shrivastava Judge