1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 838/2009 1 Tatyarao s/o Sampatrao Kadam, Age : 50 years, Occu. Service as teacher, R/o Vivekanand Colony, Kannad, Tq. Kannad Dist. Aurangabad. 2 Mangala d/o Laxman Aghade @ Mangala w/o Kailash Gavte, Age : 40 years, Occ.: Service as teacher, R/o Adarsh Colony, Kannad, Tq. Kannad Dist. Aurangabad. 3 Bhanudas s/o Kavtikrao Nagode, Age : 42 years, Occu. Service as Clerk, R/o Sharad Pawar Colony. Chalisgaon Road, Kannad, Dist. Aurangabad. 4 Dr. Tila s/o Sajan Patil, Age : 78 years, Occu. Medical Practitioner, R/o Bhaji-Mandi, Kannad, Tq. Kannad Dist. Aurangabad. ..Petitioners. Versus 1 The State of Maharashtra, through Police Inspector, Kannad Police Station, Tq. Kannad, Dist. Aurangabad. 2 Nanasaheb s/o Dagdu Bhojane, Age : 50 years, Occu. Agriculture, 2 R/o Kannad, Tq. Kannad, Dist. Aurangabad. ...Respondents. Mr. A.A. Mukhedkar, Advocate for petitioners. Mr. T.S. Lodhe, A.P.P. for respondent No.1 /State CORAM : A.V. NIRGUDE, J. Date : 6th September, 2010. ORAL JUDGMENT:- 1. This revision is filed against the judgment and order dated 26/08/2009 passed by Additional Sessions Judge-3, Aurangabad in Criminal Revision Application No. 271/2008. 2. The facts leading to the litigation are as under:- The respondent No. 2 is the original complainant who had lodged his private complaint against present applicant before the learned Judicial Magistrate (First Class) at Kannad on 21/07/2008. He alleged that the present applicant had committed an offence punishable under Section 420, 468, 471, 120-B read with Section 34 of Indian Penal Code and under Section 138 of Negotiable Instrument Act. The learned Judicial Magistrate (First Class), it seems, held inquiry under Section 202 of Cr.P.C. before taking cognizance of the 3 case and held that there is no sufficient ground for proceeding and dismissed the complaint. The learned judge of the revisional Court however held that the learned Judicial Magistrate committed illegality in dismissing the complaint at the threshold. He held that the learned Magistrate, ought to have proceeded in this case under Section 200 of Cr.P.C. and have recorded the statement of the witnesses and should have then passed necessary orders. The question is whether the order passed by the learned Magistrate was proper? The allegations made in the complaint are as under. The respondent/complainant's son was in need of employment. The Applicant No.4 is Secretary of a Educational society which is running a school. The applicants No.1 to 3 are head master and other employees of the School. The respondent/complainant alleged that when he approached the applicants for employment of his son, they demanded Rs.4,00,000/- from him. He said that he paid more than Rs. 2,80,000/- to the applicants. Some amount he said, was paid by cheque. The applicants received this amount as donation to the education society. It is further said that the applicants then gave employment to the son of the complainant. But they started harassing the complainant’s son for demand of remaining amount. Ultimately, the complainant’s son 4 committed suicide. The complainant alleged that by demanding and accepting the amount as mentioned above the applicants had committed offences punishable under Sections 420, 468, 471 etc. of Indian Penal Code. The learned Magistrate held that the allegations even taken as truthful, would not amount to an offence punishable under Sections 420, 468 and 471. There is no allegation of forgery and if the complainant had given the amount as demanded by the applicants for awarding employment to his son, it would apparently not amount to an offence of cheating. Even otherwise after receiving the amount, admittedly the applicants awarded employment to the complainant’s son. It is obvious that the receiving illegal gratification of the employees of the School and the office bearers of the management of School would not amount to any offence punishable under Indian Penal Code. There is no allegation in support of the complaint under Section 138 of the Negotiable Instrument Act. The respondent/complainant stated at one place that he had given some of the amount to the applicants through a cheque and the applicants received this cheque and encashed it. This, from no angle looks like a case of bouncing of a cheque. The learned Magistrate thus acted perfectly within the four corners of Section 202 of Cr.P.C. held enquiry contemplated under sub section (1) of Section 202 and 5 dismissed the complaint in view of the provisions of Section 203 of Cr.P.C.. Section 202(1) gives ample scope to a Magistrate who receives a complaint. He has discretion to postpone issuance of process against the accused and hold an enquiry into the case himself. Sub section (2) of Section 202 gives ample powers to such Magistrate to take evidence of witnesses on oath during such enquiry if required. Here, in this case after reading the complaint itself if the Magistrate came to a conclusion that there is no substance in the complaint, it means he had held an enquiry as contemplated by sub section (2) of Section 202 Cr.P.C. and in such enquiry he felt no need to examine any witnesses on oath etc. and so his order dismissing the complaint was not illegal. The learned judge of the revisional Court committed gross error in holding that if the learned Magistrate did not think it necessary to refer the case to the Police Officer under Section 156(3), which was sought by the respondent/complainant, he had no other option but to follow the provisions of Section 200 Cr.P.C.. I am afraid, even then the Magistrate is not obliged to undertake steps under Section 200 of Cr.P.C. As said above, he had ample discretion to take steps under Section 202 Cr.P.C.. The order of the learned Judge of the revisional Court, thus is incorrect and deserves interference. 6 ORDER The writ petition is allowed. The order passed by learned judge of the revisional Court stands set aside. (A.V. NIRGUDE, J) ts k/criwp838.09/ok