1 WP-1392-09.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Mhi
CRIMINAL WRIT PETITION NO. 1392 OF 2009
M/s. Agarwal International )
A partnership firm registered under )
Indian Partnership Act 1932 having its )
earlier office at 16, Ground floor, Arun )
Chambers, Next to A.C. Market, Tardeo, )
mumbai 400 034, present office at 632, )
6th floor, Arun Chambers, Tardeo, )
Mumbai - 34, through its partner )
Mr. Shyam Sunder Agarwal. ).. Petitioner
1.
vs.
State of Maharashtra
ig )
2. Frisco International Private Limited )
a company incorporated under )
Companies Act, 1956, having its )
office at Sub-Plot No.6 Plot No.11/12)
Western Industrial Co-operative Ltd. )
Opp. Seepz M.I.D.C. Andheri (E), )
Mumbai 400 093. )
3. Samir Goenka )
Director FRISCO International )
Private Ltd., Sub-Plot No.6 )
Plot no.11/12, Wetern Industrial )
Co-operative Ltd., Op. Seepz MIDC, )
Andheri (E), Mumbai 400 093. )
4. Shashi Sehgal, )
authorized representative, FRISCO )
International Private Ltd., Sub-Plot )
No.6 Plot No.11/12, Wetern )
Industrial Co-operative Ltd., Opp. )
Seepz MIDC Andheri (E), )
::: Downloaded on - 09/06/2013 16:09:41 :::
2 WP-1392-09.sxw
Mumbai 400 093. ).. Respondents
Mr. P.D.Jain i/b. P.D.Jain & Co.,Advocates, for the petitoner.
Smt. V.R.Bhosale, APP, for the respondent No.1 - State.
None for the respondent Nos. 2 to 4.
CORAM: J.H.BHATIA,J.
DATE : 19th July, 2010.
JUDGMENT:
1. Rule. Rule returnable forthwith. Heard the learned Counsel for the
petitioner.
2. By order dated 17.3.2010, this Court had directed notice to the
respondent Nos. 2 to 4 and had also directed that the notice shall indicate that the
petition may be finally disposed of at the admission stage. The notice was served
and the learned Counsel for the respondent Nos. 2 to 4 appeared and sought time.
On 27.4.2010, on request by the learned Counsel for the respondent nos. 2 to 4,
the matter was adjourned as a last chance. Thereafter also, on 15.6.2010, the
matter was again adjourned on the request of the learned Counsel for respondent
Nos. 2 to 4. Today, none appears for the respondent Nos. 2 to 4.
3. The petitioner had filed a complaint against the respondent Nos. 2 to
4 for the offence punishable under Section 420 read with Sec. 120-B IPC. It was
::: Downloaded on – 09/06/2013 16:09:41 :::
3 WP-1392-09.sxw
contention of the petitioner in the complaint that respondents. 2 to 4 had agreed to
deliver certain goods to the petitioner on making payment of Rs.13 lakh. On that
representation, the petitioner had made payment of Rs.13 lakh, but the goods
were not supplied and when the petitioner insisted the respondents for supply, they
contended that the said amount was adjusted against dues from one Mr. Inder of
M/s. Parul Creation, with whom the petitioner had no concern. According to the
petitioner, the respondent Nos. 2 to 4 had cheated him and made him to make
payment of Rs.13 lakh, while they had no intention to supply the goods. The
complaint was filed on 15.7.2005. Verification statement was also recorded. The
complaint was supported by a number of documents. In view of the facts and
circumstances, the learned Magistrate, 29th Court, Dadar, passed an order dated
2.3.2006 and directed N.M.Joshi Marg Police Station to carry out investigation
under Sec.202 Cr.P.C. and to submit a report.
4. Later on, N.M. Joshi Marg Police Station submitted a report to the
effect that the respondents/accused were located within the territorial jurisdiction
of MIDC Police Station, at District Thane and therefore, the MIDC Police Station,
Thane be directed to hold investigation under Sec.202 Cr.P.C. After the receipt of
the said report, by order dated 30.1.2008, the learned Metropolitran Magistrate
dismissed the complaint under Sec. 203 Cr.P.C. observing that it was a civil
::: Downloaded on – 09/06/2013 16:09:41 :::
4 WP-1392-09.sxw
dispute. That order was challenged by the comlainant/petitioner before the
Sessions Court by filing a revision application, but the revision application was
rejected. Hence, this petition.
5. In view of the facts noted above, it appears that on 2.3.2006, when the
first order was passed by the then Metropolitan Magistrate, Mr. R.T.Badge, he had
considered the allegations made in the complaint, verification statement and the
documents annexed with the complaint and had formed an opinion that it was
necessary to get the matter investigated through police under Sec. 202 Cr.P.C. and
accordingly, he passed the order. However, the N.M. Joshi Marg Police Station
reported and informed the learned Magistrate that the accused were not situated in
its jurisdiction and therefore, the MIDC Police Station, Dist. Thane may be
directed to hold investigation under Sec.202 Cr.P.C. In view of this report, the
only thing which was expected from the learned Magistrate was to direct the
MIDC Police Station, Thane to hold investigation under Sec. 202 Cr.P.C. and to
submit a report. Instead of that, the Metropolitan Magistrate, Mr. R.B.Agrawal,
who had suceeded the earlier Magistrate, passed the impugned order dated
30.1.2008 dismissing the complaint under Sec.203 Cr.P.C.
6. Section 202 Cr.P.C. provides that any Magistrate, on receipt of a
::: Downloaded on – 09/06/2013 16:09:41 :::
5 WP-1392-09.sxw
complaint of an offence may 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 such other person as he thinks fit, for the purpose of deciding
whether or not there is sufficient ground for proceeding. In the present case, the
learned Magistrate had postponed issuance of process and had directed
investigation by police under Sec. 202 Cr.P.C. Section 203 Cr. P.C. provides that
if, after considering the statements on oath, if any, of the complainant and of the
witnesses and the result of the enquiry or investigation, if any, under Sec.202, the
Magistrate is of the opinion that there is no sufficient ground for proceeding, he
shall dismiss the complaint and in every such case he shall briefly record his
reasons for so doing. From this, it is clear that if the Magistrate, while postponing
issuance of process, decides not to hold enquiry himself and to direct the police
to make investigation, he is expected to wait for the report of the investigation and
under Sec. 203, the Magistrate has to form an opinion on the basis of not only the
statements on oath of the complainant and witnesses, but also the result of such
investigation under Sec. 202 Cr.P.C. before forming an opinion as to whhether
there is or there is no sufficient ground for proceeding. Once the Magistrate has
passed an order under Sec. 202 Cr. P.C., and directed the police to hold
investigation and submit report, the Magistrate had no choice but to wait for that
report and to consider that report before any further order could be passed either
::: Downloaded on – 09/06/2013 16:09:41 :::
6 WP-1392-09.sxw
under Sec. 203 or under Sec.204 Cr.P.C. The Magistrate could not revoke the
earlier order directing police to hold the investigation. In the present case, the
earlier learned Magistrate had directed the police to hold investigation under Sec.
202, but that investigation was not made by N.M.Marg Police Station on the
ground that it did not have territorial jurisdiction and that the territorial
jurisdiction is that MIDC Police Station, Thane. This could not be treated as a
report of the police on investigation. It was only a request by the police to transfer
the investigation from N.M.Joshi Marg Police Station to MIDC Police Station,
Thane District, which has the territorial jurisdiction. In such circumstances, only
option which was available before the Magistrate was to transfer the investigation
to MIDC Police Station, District Thane. It was not the stage when the Magistrate
could form an opinion about existence of sufficient grounds to proceed further or
otherwise. However, it appears that the successor Magistrate straightway
dismissed the complaint holding that the dispute is of civil nature and thus
practically, he has reviewed and revoked the earlier order passed by his
predecessor under Sec.202 Cr.P.C. The learned Magistrate had no power to
review and revoke the earlier order.
7. Before dismissing the complaint under Sec.203, in the given
circumstances, the Magistrate had to consider the police report on
::: Downloaded on – 09/06/2013 16:09:41 :::
7 WP-1392-09.sxw
investigation,but as no such report was available, he could not have come to
conclusion that there was no substance to proceed further.
8. In view of the legal position and facts, the impugned order dated
30.1.2008 dismissing the complaint under Section 203 Cr.P.C. is clearly illegal
and is liable to be set aside. It appears that the Sessions Court also did not
consider this aspect of the matter before rejecting the revision application.
9.
For the aforesaid reasons, the petition is allowed and the impugned
order dated 30.1.2008 passed by the Metropolitan Magistrate, 29th Court, Dadar,
dismissing the complaint is hereby set aside. The Criminal Case No.
192/Misc./2005 is hereby restored to the file of the Metropolitan Magistrate, 29th
Court, Dadar with direction to direct the concerned police station to hold
investigation under Sec.202 Cr. P.C. and submit a report as per the earlier order
dated 2.3.2006. The Magistrate shall proceed with the matter after receipt of this
report from the police as per law.
Rule made absolute accordingly.
(J.H.BHATIA,J.)
::: Downloaded on – 09/06/2013 16:09:41 :::