Gujarat High Court
Shantilal Mohanlal Shah vs Chandrakant Ambalal Thakkar And Anr. on 13 November, 1986
Equivalent citations: (1987)2GLR784
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT A.P. Ravani, J.
1. The opponent No. 1 herein was convicted for the offence under Section 420 of Indian Penal Code and in appeal filed by him against the said judgment and order of conviction, the applicant who had filed private complaint in the Court was not given notice. Therefore, he feels aggrieved. According to the applicant, he has a right to receive notice of hearing as provided under Section 385(1)(iii) of Criminal Procedure Code. Therefore, the question is, has the applicant (original complainant) any right whatever to receive such notice as to hearing of appeal?
2. Necessary facts, in brief, be stated first. The applicant filed a complaint in the Court of learned Metropolitan Magistrate, Ahmedabad, alleging that the opponent No. 1 (original accused) had committed offence of cheating and had misappropriated an amount of Rs. 12,000/-. It was alleged that the applicant and the accused were working as Directors of a Bank known as Apex Bank. Thus, the applicant and the accused were knowing each other. The applicant advanced an amount of Rs. 12,000/- to the accused. It was the case of the applicant that as per the promise and as per the post-dated cheques of Rs. 500/- each given to the applicant, he could not realize the amount. When the cheques were presented before the bank, it was brought to his knowledge that the account was closed. It may also be noted that the applicant had obtained promissory note when he advanced the aforesaid amount.
3. The learned Magistrate did not issue process on the complaint but directed the Police to investigate in the matter and submit report. This order was passed by the learned Magistrate under the provisions of Section 156(3) of Criminal Procedure Code. The Police Inspector, Ellis Bridge Police Station, investigated in the matter and submitted the charge-sheet. On the basis of the charge-sheet, the learned Magistrate proceeded further. The charge for offence of cheating under Section 420 of Indian Penal Code was framed against the accused and he pleaded not guilty to the charge. The learned Magistrate on appreciation of the evidence and after hearing the parties came to the conclusion that the opponent No. 1 (accused) was guilty of offence under Section 420 of the Indian Penal Code and ordered him to undergo R.I. for three months and further ordered to pay a fine of Rs. 1,000/- and in default of payment of fine, ordered him to undergo R.I. for one month more. This judgment and order was passed by the learned Magistrate on 30-11-1981.
4. The opponent No. 1 (accused) preferred an appeal being Criminal Appeal No. 208 of 1981 in the Court of learned City Sessions Judge, Ahmedabad. The learned Additional City Sessions Judge who heard the appeal came to the conclusion that the offence of cheating under Section 420 of Indian Penal Code was not made out inasmuch as there was no parting with the property on the basis of the inducement or false representation made by the opponent No. 1 (accused). In his opinion, the dispute between the parties was of Civil nature. Therefore, he allowed the appeal and acquitted the accused of the offence charged against him This judgment and order was passed on May 12, 1982.
5. Against the aforesaid judgment and order of acquittal passed by the learned Additional City Sessions Judge, Ahmedabad, the applicant has preferred this Revision Application. A technical contention has been raised. It is submitted that the case was instituted by the applicant by filing complaint before the Magistrate. Therefore, the applicant had a right of receiving notice and of being heard as provided for under Section 385 of Criminal Procedure Code. It is contended that the appeal before the learned City Sessions Judge was against a judgment and order of conviction and the appeal was not dismissed summarily. Therefore, it was incumbent upon the appellate Court to issue notice to the applicant (original complainant) as to the time and place at which, such appeal was to be heard. Reliance is placed on the provisions of Section 385(1)(iii) of the Criminal Procedure Code, relevant part of which reads as follows:
385. Procedure for hearing appeals not dismissed summarily:
(1) If (he Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-
(i) x x x x (ii) x x x x.
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
(iv) x x x x.
6. The aforesaid contention cannot be accepted for the simple reason that the instant case cannot be said to be a case "instituted on a complaint". When the applicant filed a complaint, the Magistrate did not take cognizance of the case. He thought it fit to get the matter investigated through the police. There is no dispute with regard to the fact that the learned Magistrate directed the police to investigate in the matter under Section 156(3) of Criminal Procedure Code. It is also not disputed that the report submitted by the police is a report as provided for under the provisions of Section 173 of Criminal Procedure Code. The learned Magistrate, after going through the report submitted by the police, has taken cognizance of the case. Thereafter he proceeded further with the trial as if the case was instituted on the police report. It is very clear from the judgment delivered by the learned Magistrate that the learned Magistrate has proceeded further with the case under the provisions of Section 238 and onwards of Criminal Procedure Code and not under the provisions of Section 244 onwards of Criminal Procedure Code. When the learned Magistrate ordered the police to investigate in the matter, he exercised his power under Section 156(3) of Criminal Procedure Code. At that time he was acting at the pre-cognizance stage of the case. When a Magistrate orders investigation as provided for under Section 156(3) of Criminal Procedure Code, position with regard to the investigation of a case does not change materially. A person may straightway go to police and file complaint and put the police machinery into operation. Another person may go to the Court of a Magistrate and through the instrumentality of the Magistrate, the police machinery may be put into operation. In either case, ultimate result after investigation by the police would be the report under Section 173 of Criminal Procedure Code. This is what the Supreme Court has also held in a case of D. Lakshminarayana v. V. Narayana . As observed by the Supreme Court, an order made under Sub-section (3) of Section 156 of Criminal Procedure Code is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1) of Criminal Procedure Code. Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173 of Criminal Procedure Code.
7. Here, reference may be made to Section 190 of Criminal Procedure Code which provides for taking of cognizance of offence by Magistrate. As provided in this section, a Magistrate may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts:
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. By resorting to any of the three modes narrated hereinabove a Magistrate may take cognizance of an offence. In the instant case, the learned Magistrate has not taken cognizance of the offence on receiving the complaint from the applicant. The Magistrate thought it fit only to call for the report of the police by passing an order under Section 156(3) of Criminal Procedure Code.
8. The Supreme Court in a case of Tula Ram v. Kishore Singh observed as under:
Where a Magistrate orders investigation by the Police, before taking cognizance, under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above.
In the instant case, the learned Magistrate has taken action on the police report and not on receipt of the complaint from the applicant.
9. It may again be noted that a case does not get instituted on mere filing of a complaint in Court. By filing a complaint before a Magistrate, the complainant puts the machinery of the Court into motion. But, thereby be does not get the case instituted. In this connection, reference may be made to the decision of Supreme Court in the case of Bhimappa v. Laxman . In the case, the terms 'case' and 'instituted' as occurring in Section 417(3) of Criminal Procedure Code, 1898, came up for consideration. As held by the Supreme Court, the word 'case' is not defined by the Code but its meaning is well understood in legal circles. In criminal jurisdiction, it means ordinarily a proceeding for the prosecution of a person alleged to have committed an offence. In other contexts the word may present other kinds of proceedings. But in the context of Section 417(3) it must mean a proceeding which at the end results either in discharge, conviction or acquittal of an accused person. Similarly, term 'instituted' is also interpreted. Therefore, it can be said that the term 'instituted' refers to a case in which cognizance is taken upon a complaint of facts constituting an offence, same meaning can and should be given to both these terms i.e., 'case' and 'instituted' occurring in Section 385 of Criminal Procedure Code.
10. Admittedly in this case the cognizance of the case is not taken on the complaint of the complainant/applicant. The cognizance of the case has been taken by the learned Magistrate only when the Police submitted the report after making investigation pursuant to the order passed by the learned Magistrate under Section 156(3) of Criminal Procedure Code. Once it is shown that the learned Magistrate has not taken cognizance on the basis of the complaint filed by the applicant, it can never be said that the case is instituted on the complaint filed by the applicant.
11. In above view of the matter, the provisions of Section 385(1)(iii) of Criminal Procedure Code will not be of any help to the applicant inasmuch as in the facts of this case it cannot be said that the case was instituted on the complaint filed by the applicant. Thus, the technical contention raised by the learned Counsel for the applicant fails.
11.1. The learned Counsel for the applicant wanted to urge on the merits of the matter. We have permitted her to argue even on merits. According to her, if the offence of cheating is not disclosed, at any rate, the offence of mischief is disclosed. We do not see any substance in this submission. By no stretch of reasoning, it can be said that there is any 'destruction of property' or there was any such allegation against the accused. In this case all that has happened is that the accused has not kept his promise of returning the amount advanced to him. If the facts alleged by the complainant/applicant are true this may amount to disgraceful or dishonourable conduct. But this would never amount to an offence of cheating as defined under the provisions of Indian Penal Code.
12. In view of the above facts and circumstances of the case, there is no substance in this Revision Application. Hence, the Revision Application fails and the same is hereby rejected. Rule discharged.