Madhya Pradesh High Court
Adarsh Singh Kushwah vs The State Of Madhya Pradesh Thr. on 18 April, 2016
1 M.Cr.C. No. 11083/2015 & 11084/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
M.Cr.C. No. 11083 OF 2015
Adarsh Singh Kushwaha
-Vs-
State of Madhya Pradesh and another
For applicant : Shri D.P. Singh, Advocate
For State/respondent No. 1 : Shri Mohd. Irshad, Panel Lawyer
For respondent No. 2 : Shri Awadhesh Singh Bhadoriya,
Advocate.
AND
M.Cr.C. No. 11084 OF 2015
Adarsh Singh Kushwaha
-Vs-
State of Madhya Pradesh
For applicant : Shri D.P. Singh, Advocate
For State/respondent : Shri Mohd. Irshad, Panel Lawyer
PRESENT : HON'BLE MR. JUSTICE N.K. GUPTA
ORDER
(18/04/2016) Both the matters are interconnected and, therefore, decided by the present common order.
2. M.Cr.C. No. 11083/2015 is filed by the applicant against the order dated 15.09.2014 and consequentially to get the registration of FIR at Crime No. 382/2014 for offence under Sections 420, 467 and 468 of IPC to be quashed. Thereafter a 2 M.Cr.C. No. 11083/2015 & 11084/2015 petition under Section 482 of the Cr.P.C. (M.Cr.C. No. 11084/2015) was filed to stop the proceedings against the applicant under Section 82 of the Cr.P.C.
3. Facts of the case, in short, are that the complainant/ respondent No. 2 in M.Cr.C. No. 11083/2015, took a loan for purchase of the house in the year 2011-12 for a sum of Rs.37,71,100/- and on demand of payment of loan, the complainant had issued a cheque bearing No. 534647 dated 25.05.2014 of Rs.9,21,100/- of Bank of Baroda, Sarafa Bazar, Lashkar and another cheque bearing No. 534648 dated 01.06.2014 of Rs.28,50,000/- of the same bank was issued. Those cheques were dishonored. The complainant has filed an application under Section 156(3) of the Cr.P.C. that from the very beginning, he was prosecuting his office in the premises of the applicant and two blank cheques were stolen by the applicant. There was no loan transaction between the parties and, hence, there was no question of repayment. The cheques were forged after stealing them and placed before the Punjab National Bank for their payment. Since the complainant did not issue such cheques, he had no such amount available in his account and, therefore, both the cheques were dishonored and a false complaint under Section 138 of the Negotiable Instrument Act was filed before the competent Magistrate by the applicant. Thereafter the complainant has filed the application under Section 156(3) of the Cr.P.C. that a forgery was committed by the applicant. The JMFC, Gwalior vide order dated 15.09.2014 accepted the application and directed the SHO, Maharajpura to register the FIR and investigate the matter and thereafter final report be placed before the competent Court. During the investigation, it was found that the applicant was absconding and, 3 M.Cr.C. No. 11083/2015 & 11084/2015 therefore, proceedings under Section 82 of the Cr.P.C. were initiated against the applicant.
4. I have heard the learned counsel for the parties at length.
5. Learned counsel for the applicant has placed his reliance upon the judgment passed by the Apex Court in case of "Priyanka Shrivastava and another Vs. State of Uttar Pradesh and others" [(2015) 6 SCC 287] and the order passed by the single Bench of this Court in case of "Ramyash Tiwari Vs. State of M.P." [ 2013 (2) MPHT 521] to show that the Magisterial Court while passing the order under Section 156(3) of the Cr.P.C. did not apply his mind and without any appropriate evidence, order under Section 156(3) of the Cr.P.C. was passed. It is contravention to the guideline given by the single Bench of this Court in case of Ramyash Tiwari (supra).
6. On the other hand, the learned counsel for the respondent - Aditya SIngh Kushwaha has placed his reliance upon the judgments passed by the Apex Court in case of "Rameshbhai Pandurao Hedau Vs. State of Gujarat" [2010 Cr.L.R. (SC) 318], "Madhao and another Vs. State of Maharashtra and another"
[2014 (4) CCSC 2049 (SC)], "Srinivas Gundluri and others Vs. S.E.P.C.O. Electric Power Construction Corpn. and others"
[2011 1 CCSC 171 (SC)] and "Suresh Chand Jain Vs. State of M.P. and another" [2002 Cr.L.R. (SC) 221], in which it is held that if complaint under Section 200 of the Cr.P.C. is filed before the Magistrate and if he proceeds under Sections 200 and 202 of the Cr.P.C. then thereafter no direction can be given under Section 156(3) of the Cr.P.C. For issuance of direction under Section 156(3) of the Cr.P.C., it is for the Magistrate to issue such direction before taking the cognizance of the case.
4 M.Cr.C. No. 11083/2015 & 11084/20157. In case of "Sakiri Vasu Vs. State of U.P. and others"
[AIR 2008 SC 907], it is held that if police does not write down the FIR in the case then the complainant is free to send a complaint to the Superintendent of Police concerned under Section 154(3) of the Cr.P.C. and thereafter he can file an application before the Magistrate under Section 156(3) of the Cr.P.C. Hence, for getting a direction under Section 156(3) of the Cr.P.C., there is no need to file a complaint under Section 200 of the Cr.P.C. before the Magistrial Court. In the aforesaid cases, passing of order under Section 156(3) of the Cr.P.C. is permitted before the enquiry initiated by the Magistrate under Sections 200 and 202 of the Cr.P.C. Once enquiry is initiated then the Magistrate has no power to instruct the police under Section 156(3) of the Cr.P.C. but when a bare application under Section 156(3) of the Cr.P.C. is filed then the Magistrate is not expected to work as a post office and to transmit the complaint to the concerned SHO for registration of the case, hence, in case of Priyanka Shrivastava (supra), the Apex Court had observed that now a days, a common practice of preferring application under Section 156(3) of the Cr.P.C. is being followed casually and, therefore, to avoid unnecessary harassment, it is for the Magistrate to examine the documents to consider as to whether any cognizable offence is made out from the facts as shown in the application and at least such application should be supported by an affidavit. Under these circumstances, it is the duty of the Magistrate while considering the application under Section 156(3) of the Cr.P.C. to examine the documentary evidence, which is produced along with the application and to pass a speaking order so that crime be registered against the concerned accused.
8. The impugned order is examined in the light of 5 M.Cr.C. No. 11083/2015 & 11084/2015 aforesaid legal situation then it would be apparent that the Magistrate concerned in the order dated 15.09.2014 did not pass any speaking order. It was for him to examine the documents filed along with the complaint and should have insisted for an affidavit if it was not filed along with the application. According to the respondent, eight documents were filed along with application under Section 156(3) of the Cr.PC. viz complaint before SHO, complaint before SP, notice to the applicant, reply to the notice, registered AD slip, order-sheet of the case No. 196/2014, process fee and notice to the accused by Court. It would be apparent that the respondent did not file any affidavit in support of his application. The Magisterial Court while passing order under Section 156(3) of the Cr.P.C. did not consider the various flaws visible in the complaint. Firstly that the applicant had already filed a criminal complaint under Section 138 of the Negotiable Instrument Act and, therefore, unless that Court has found that the cheques were forged, such counter case could not be lodged; secondly being a company prosecuting a business of plots and houses, when his cheque book with signed blank cheques was left then while using the next cheque, it must be in the notice of the respondent that his cheques were stolen. According to the respondent, the transaction between the applicant and respondent was closed in the year 2010 and, therefore, such cheques must have been stolen in the year 2010 then it was for the respondent to establish before the Magistrate that he used the subsequent cheques in the year 2010 and those cheques were stolen and, therefore, the data relating to issuance of cheque books and bank account to show as and when subsequent cheque was used by the respondent and such documents were to be submitted along with the application under Section 156(3) of the 6 M.Cr.C. No. 11083/2015 & 11084/2015 Cr.P.C.; thirdly if a person, who is dealing with the business of estate then when he closed the transaction with the applicant in the year 2010 then if some cheques were stolen then he should have known about that theft when he had an opportunity to use the cheque book for the next cheque. The respondent was not expected to remain careless about his blank cheques for four years. Hence, it was for the Magistrate to satisfy himself that prima facie any offence was made out against the applicant or not and, thereafter, he would have directed to register the case under Section 156(3) of the Cr.P.C. but it appears that on the basis of complaint sent by the respondent to the SHO and SP concerned, his application was allowed without passing any speaking order and SHO, Maharajpura was directed to register a case. Hence, the Magistrate did not apply its mind while accepting the application under Section 156(3) of the Cr.P.C. and, therefore, it was contrary to the provisions of law specially as explained in case of Priyanka Shrivastava (supra).
9. Learned counsel for the respondent has submitted that at present investigation is almost complete and police is about to file the charge-sheet, therefore, the impugned order could not be set aside on the technical ground. On the other hand, the learned counsel for the State has submitted that Investigation Officer has to consider the evidence of the accused, who is absconding and, therefore, investigation is not complete. However, if an order is passed without application of mind then due to its consequence, if one sided investigation has been done then such order may not be left intact because the investigation is complete. When the order relating to registration of crime is not maintainable then the investigation done by the police has no meaning and the Magisterial Court cannot permit the 7 M.Cr.C. No. 11083/2015 & 11084/2015 Investigation Officer to proceed under Section 82 of the Cr.P.C. against the proposed accused.
10. On the basis of the aforesaid discussions, the petition under Section 482 of the Cr.P.C. filed by the applicant - Adarsh Singh Kushwaha is hereby allowed. Order dated 15.09.2014 passed by the JMFC, Gwalior is hereby set aside. The matter is remanded back to the concerned JMFC to ask for an affidavit of the respondent along with documents in support of his allegations and thereafter to pass the speaking order afresh. The SHO, Maharajpura shall keep the investigation of the case in abeyance and if the order under Section 156(3) of the Cr.P.C. is again given by the concerned Magistrate then investigation done by SHO, Maharajpura may be continued thereafter. However, no proceedings under Section 82 of the Cr.P.C. can be drawn against the applicant because at present, the registration of crime is also under challenge and the order, by which the crime is registered, has been quashed.
11. With the aforesaid directions, both the petitions are hereby disposed off.
(N.K. Gupta) Judge 18/04/2016 Abhi