IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO. 182 OF 2004 Manoj Prabhakar …Revisionist Versus State of Uttaranchal others …Respondents Dated: July 29, 2010 Sri Kailash Chandra, Adv. For the revisionist Sri Amit Bhatt, Addl. GA for the State/respondents 1 and 3 to 5 Sri VD Bisen, Adv. For the respondent no.2 HON. DHARAM VEER, J. This criminal revision, preferred by the revisionist under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as cr.P.C.), is directed against the orders dated and 21.4.2004 and 16.8.2004 and also the order dated 21.9.2004 passed by Judicial Magistrate, Khatima, Udham Singh Nagar in Criminal Case No. 368 of 2004. 2. In brief, the facts of the case are that Respondent No.2- Resham Singh moved an application u/s 156(3) Cr.p.C. stating there in that he was having a shop in front of Government Hospital in the name of Gurudev Medical Store at Sitarganj Road, Khatima. There, the revisionist Manoj Prabhakar and co-accused Harish Sharma, Vinod Sharma, Baldev Rawat had opened the office of the company namely Apace India Finance & Construction Ltd. The revisionist Manoj Prabhakar was its Director and co- accused Baldev Rawat was its regional Manager, co-accused Harish Sharma was its Branch Manager and co-accused Vinod Sharma was its agent. All the accused persons by enticing and offering Lucrative offer to respondent no.2., got opened a Saving Plan Account ‘No.0041 BNB4 I031’ in the said company for one year for Rs.100/- per day. In this way, the respondent no.2 from 22.4.1998 to 21.4.1999 deposited Rs.36,400/- in the said company. After some days, when respondent no.2 want to the aforesaid company in order to get his money back, then he found the office locked. After that when he contacted co-accused Harish Sharma and Vinod Sharma in this regard, then they assured him to pay the entire money with interest after some day, however later on, they refused to pay him the money. With the same averments, the application was moved by the respondent no.2. On this application, J.M. Khatima on 24.8.2001 directed P.S. Khatima to register the case and submit the report after investigation. Thereafter, the concerned I.O. submitted the final report against the accused persons on 31.12.2001 in the court. On the said final report, the notices were issued to the respondent no.2 Feeling aggrieved, the respondent no.2 in oral evidence, got himself examined u/s 200 Cr.P.C. and in support his case, he also got examined Surjit Singh and Jasbir Singh u/s 202 Cr.P.C. and he also produced some relevant documents in the documentary evidence. After considering all the facts and circumstances of the case, the learned Judicial Magistrate, Khatima vide his order dated 21.4.2004 rejected the final report dated 31.12.2001 and took cognizance u/s 4.6/420 IPC against the revisionist and co-accused and accordingly summoned them in the court. On 16.8.2004, since the revisionist Manoj Prabhakar were not present, hence the Judicial Magistrate, Khatima issued bailable warrant against the revisionist Manoj Prabhakar. After that the revisionist filed his objection before the trail court. Vide order dated 21.9.2001, the learned Judicial Magistrrate, Khatima rejected the objection filed by the revisionist and again directed to issue bailable-warrant against the revisionist to appear before the court. Feeling aggrieved, the revisionist has preferred the present revision before this Court. 3. I have perused the orders dated 21.4.2004, 16.8.2004 as well as the order dated 21.9.2004 issued against the revisionists. I have also perused the entire material available on record. 4. In the present case, initially the respondent no.2 moved an application u/s 156(3) of Cr.P.C. On the said application, the learned Magistrate ordered P.S. Khatima for registration of the case and to submit the report after investigation. Thereafter, the final report was submitted by the concerned I.O. in the case. The learned Magistrate was not satisfied with the final report and he therefore took cognizance against the revisionist Manoj Prabhakar u/s 406/420 IPC. The learned Magistrate after considering all the facts and circumstances of the case and after perusing the statement of the complainant/respondent no.2 recorded u/s 200 Cr.P.C. and also perusing the statement of witnesses Surjit Singh and Jasbir Singh, who were got examined by the complainant as well as the documents submitted by the respondent no.2, has rightly rejected the final report and has rightly took cognizance against the revisionists u/s 406/420 IPC and has rightly summoned them as required in law. I am fortified in my view by a judgment of Hon’ble Apex Court in the case of Minu Kumar & another v. State of Bishar & others reported in (2006) 2 SCC (Cri) 310, and in para 11 of said judgment, it was held as under:- “11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise; the report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he again has option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take congizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognznace of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or section 202 also. (See India Carat (P) Ltd. V. State of Karnataka)” 5. In view of the above quoted judgment, it is clear that the three courses are open before the Magistrate (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under section 156 (3). In the present case, the learned Magistrate by adopting second course, rightly rejected the final report and took cognizance against the revisionist Manoj Prabhakar u/s 406/420 IPC. 6. Hence, in view of judgment of Hon’ble Apex Court in case of Minu Kumar (Supra), the impugned orders passed by the learned Judicial Magistrate, Khatima appears to be perfectly justified and as per law. I do not find any illegality, incorrectness or impropriety in the impugned order passed by learned Judicial Magistrate, Khatima. Even the criminal revision preferred by the co-accused of this case bearing Criminal Revision No.151/2004 has been dismissed by this Court vide a detailed judgment and order dated 21.4.2008. 7. Fro the reasons recorded above, the revision is devoid of merits and is accordingly dismissed. Interim order dated 16.10.2004 is vacated. (Dharam Veer, J.) July 29, 2010 Rajeev Dang