IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No. M- 36146 of 2010 Date of decision: 4.1.2011 Neelam Devi ......Petitioner Vs. State of Haryana and another ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr. Parmod Chauhan, Advocate, for the petitioner. **** ORDER The present petition has been filed by petitioner Neelam Devi for quashing of order dated 31st October, 2009 passed by Judicial Magistrate Ist Class, Rohtak in complaint No. 20/1 dated 15.7.2009 and order dated 19th August, 2010 passed by Sessions Judge, Rohtak vide which the criminal revision filed by the petitioner has been dismissed. Learned counsel for the petitioner submits that the learned trial Court while granting permission to sell the share of minor son of respondent No.2, had imposed a condition upon respondent No.2 to deposit the amount received from sale of share of minor son Vivek in a fixed deposit scheme in some nationalized bank in the name of minor, till attains majority, but the same has not been complied by respondent No.2.The trial Court also directed respondent No.2 to execute an indemnity bond to indemnify the minor in case of any loss but in-spite of that direction, respondent No.2 did not comply with the Crl.Misc. No. M- 36146 of 2010 [2] condition imposed upon her by the trial Court as the amount of share of minor Vivek has not been deposited in any nationalized bank and no indemnity bond was executed and therefore, respondent No.2 has committed an offence under Sections 420/406 IPC. Learned counsel further submits that the trial Court after recording statements of witnesses and taking cognizance of the matter, should have decided the complaint on merit but instead of that matter was sent to police under Section 202 Cr.P.C. and the complaint was dismissed on the basis of police report. The revisional Court also dismissed the revision vide order dated 19th August, 2010. It is also the contention of the learned counsel for the petitioner that there was no provision to call for the police report under Section 202 Cr.P.C. once cognizance of the complaint had already been taken by the trial court after recording statements of the witnesses. Learned counsel also relied upon the judgment of this Court in Gurlal Singh Grewal v. State of Punjab and others 2009(1) R.C.R.(Criminal) 640 in support of his contention. Heard the arguments of learned counsel for the petitioner and have also perused the impugned orders and other documents available on the file. In this case, the petitioner filed a complaint under Section 420/406 IPC against respondent No.2 on the allegations that respondent No.2 had entered into an agreement to sell a plot which was inherited by her, her minor son Vivek and Smt.Murti Devi mother of deceased Virender Singh. A permission was sought from the Court to sell the share of her minor son in the plot and the said plot Crl.Misc. No. M- 36146 of 2010 [3] was sold to the petitioner for a consideration of Rs.7,80,500/- vide registered sale deed. As per order of the civil Court, respondent No.2 was to deposit the amount received from sale of share of minor Vivek in a fixed deposit scheme in some nationalized bank till the minor attains majority. The respondent was also directed to execute an indemnity bond to indemnify the minor in case of loss. Even after receipt of full sale consideration of Rs.7,80,500/- from the petitioner, the share of minor son Vivek was neither deposited in a fixed deposit scheme nor executed any indemnity bond and whole of the amount was misappropriated.In preliminary evidence, the petitioner examined Om Parkash as PW-1 and she herself examined as PW-2. Thereafter, the learned trial Court sought a police report under Section 202 Cr.P.C. and after discussing evidence, dismissed the complaint. A revision was also filed before the learned Sessions Judge, Rohtak which was also dismissed vide order dated 19th August, 2010. Admittedly, the petitioner as well as respondent No.2 are cousins as mother of petitioner and mother of respondent No.2 are real sisters. Respondent No.2 filed a petition under Section 8(2) of Guardian and Wards Act for seeking permission to sell the property of her minor son Vivek which was allowed with certain conditions that the amount received from the sale consideration was to be deposited in a fixed deposit scheme in some nationalized bank in the name of minor Vivek and the same should not be withdrawn till the minor attains majority. A notice was also sent to the petitioner as well as Sub-Registrar by stating that no amount was paid to her and Crl.Misc. No. M- 36146 of 2010 [4] only there was acknowledgement of receipt of the amount. Respondent No.2 also filed a civil suit which is pending and the petitioner filed an application for contempt in the Court of Civil Judge who had granted permission to sell the property and that contempt application is also pending. It appears that since there was a dispute between the parties and the present complaint has been filed by the partitioner just to settle scores with respondent No.2 whereas the dispute is between the Court and respondent No.2 and the present petitioner has no locus standi to file the present complaint. As far as power of the Magistrate for sending the matter to the police is concerned, it would be relevant to refer the enabling provisions of Cr.P.C. regarding taking of cognizance by a Magistrate on a private complaint. Chapter XV of Cr.P.C. dealing with the complaint to the Magistrate reads as follows: 200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and, and also by the Magistrate; Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- Crl.Misc. No. M- 36146 of 2010 [5] (a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b) if the Magistrate makes over the case for inquiry, or trial to another Magistrate under Section 192; Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 201. Procedure by Magistrate not competent to take cognizance of the case. If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall- (a)If the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b)If the complaint is not in writing, direct the complainant to the proper Court. “202 Postponement of issue of process,-(1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding Crl.Misc. No. M- 36146 of 2010 [6] whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1) the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in-charge of a police station except the power to arrest without warrant.” A Magistrate can order investigation under Section 156 (3) Cr.P.C. only at pre-cognizance stage and when the Magistrate chooses to take cognizance he can adopt either of the three alternatives: (a) He can peruse the complaint and if satisfied that there Crl.Misc. No. M- 36146 of 2010 [7] are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. In case the Magistrate after considering the statement of the complainant and other witnesses is not satisfied, he can dismiss the complaint or can direct the police to submit report on the basis of preliminary evidence. In the present case, respondent No.2 had filed a civil suit against the present petitioner which is still pending and the petitioner has also filed an application for contempt in the civil Court who had granted permission to sell the property of minor Vivek and the same is also pending. The civil suit has been filed by respondent No.2 for cancellation of sale deed on the ground of fraud and misrepresentation. The present complaint has been filed as a counter-blast of the civil suit filed by respondent No.2. The petitioner has no locus standi to file the present complaint in the matter. The authority cited above by the learned counsel for the petitioner is not applicable to the facts of the present case as in that case the challenge was to the report under Section 202 Cr.P.C. and Crl.Misc. No. M- 36146 of 2010 [8] proceedings were stayed and thereafter the order calling of the report under Section 202 Cr.P.C. was set aside. The petitioner remained silent after passing of the order dated 17th August, 2009 for calling of the report under Section 202 Cr.P.C. and now the same has been challenged only after dismissal of the complaint on 31st October, 2009. The evidence available on record cannot be ignored. Moreover, respondent No.2 had sent a notice to the petitioner as well as sub-registrar informing that no amount was paid to her and after that a civil suit was filed which is pending. Subsequently, a contempt application was also filed by the petitioner before the Civil Judge who had granted permission to sell the property of minor Vivek which is also pending. The petitioner has filed the criminal complaint just as a counter-blast to the civil suit filed by respondent No.2. Both the Courts below have rightly dismissed the complaint. No ground for interference is made made. The petition being devoid of any merit is dismissed. (DAYA CHAUDHARY) JUDGE January 04, 2011 raghav