ORDER
Rengasamy, J.
1. This petition is under Section 482 Code of Criminal Procedure to quash the First information Report No. 210/91 pending on the file of the Additional Chief Metropolitan Magistrate, Madras.
2. According to the petitioner, who is the accused, as the complaint given by the respondent complainant before Virugambakkam Police had been already referred to and a notice also was sent to the complainant, he cannot file another complaint before the Inspector of Police, CB. C.I.D., who has registered the case in A.F.I.R. No. 210/91 for investigation and the second investigation is not permissible under law.
3. The learned Counsel for the petitioner Mr. A.A. Selvam, would submit that the respondent herein filed a complaint before the learned Judicial Magistrate, Poonamallee on 2.3.90 and the learned Judicial Magistrate, forwarded the complaint to the Virugambakkam Police under Section 156 Code of Criminal Procedure for investigation but after investigation as the Virugambakkam Police found that it was a civil dispute between the parties, the complaint was referred to by the police and the court also has recorded this report of the police and therefore the second complaint for the same occurrence before the C.B.C.I.D. Police is not maintainable. On this basis, the petitioner seeks to quash the First Information Report, now pending before the Additional Chief Judicial Magistrate Egmore.
4. On a perusal of the records, I find that the respondent herein filed a complaint on 2.3.1990 before the Judicial Magistrate, Poonamallee, alleging that the accused in his complaint, who is known to him through his relative, lured him to purchase properties at Madras in his name as he was earning a lot in Saudi Arabia and believing his words, he sent huge amounts to the accused on different dates hoping that he would purchase the properties in his name as promised by him, that the accused also told him that the properties have been purchased by him in his name, but only in the end of 1989, he came to know that the accused have purchased the properties from out of his funds, in his own name, that when asked him to return the money sent by him from the foreign country, the accused refused and then only he came to know the fraud played upon him by cheating and therefore, he filed the complaint for the offence under Sections 420, 406, 408 and 477-A Indian Penal Code. The learned Judicial Magistrate Poonamallee, forwarded this complaint under Section 156 Code of Criminal Procedure to Virugambakkam Police for investigation and report, Virugambakkam Police registered this complaint in Crime No. 196/90 and though the original records are not found, the copies of the report read that on 22.4.90 Virugambakkam Police sent a report to the Judicial Magistrate, Poonamallee, stating that it is the case of civil nature and therefore no case could be registered against the accused. Even though it is stated that this report was sent on 22.4.90, the Judicial Magistrate, Poonamallee, did not record this report of the Police till 1994 and only two years after this petition, which was filed in 1992, when the entire records including the report sent by the Police were called from the file of the Judicial Magistrate, Poonamallee, he found no report of the police in his file and when he called for the details from Virugambakkam Police, they informed him that they have already sent a report on 22.4.1990 and a copy of that report was sent to the Magistrate in December 1994. Acting upon this copy of the report, the learned Judicial Magistrate, Poonamallee, recorded the report of the police only on 23.12.1994. In the meanwhile, the complainant, who did not hear anything about his complaint given to the Judicial Magistrate, Poonamallee, for nearly a year, sent a complaint in respect of the very same occurrence to the Superintendent, C.B. C.I.D., who forwarded the complaint to the Inspector and on the basis of this complaint, a case was registered against the petitioner herein in F.I.R. No. 210/91. Because of the referred charge, issued by the Virugasmbakkam Police on 22.4.90, the petitioner accused would contend that the second complaint and second investigation by the C.B. C.I.D. in First Information Report No. 210/91 is not maintainable and this second complaint has to be quashed.
5. The learned counsel for the petitioner Mr. Selvam would submit that the recording of the report of the police is a judicial order and when once that order was passed by the Judicial Magistrate, the aggrieved party has the right of revision against that order but at no circumstance, the Police can be allowed for second investigation on a second complaint by the aggrieved party and therefore in this case, even though the learned Magistrate has recorded the police report only on 23.12.94 as the police had already referred the complaint as the case is of civil nature, there cannot be a second investigation by CB. C.I.D. Police. The learned counsel referred to decision of this Court in Chandrashekara Pandian v. Muthukaruppa Thevar (1983 Law Weekly (crl) 347) wherein Justice M.N. Moorthy, relying upon Kamalaputi v. State of West Bengal has held that when the Magistrate on the final report submitted by the police has recorded the report, his order is a judicial order and this referred charge has to be informed to the complaint by the court. But in that case as no notice was sent to the complainant, the second complaint was not quashed against those who were accused in the complaint. Even though in Manoharbal v. Vasudev (1984 Madras Law Journal (crl) 122) Natarajan, J. (as he then was) took the view that the recording of the report sent by the police cannot be judicial orders the Magistrate did not enquire but he simply accepted the report, this view cannot be accepted as the Supreme Court also has taken the view that it is a judicial order. No doubt as held in M/S India Carat Pvt. Ltd. v. State of Karnataka (1989 Crl L.J. 963), it is left to the Magistrate either to accept the report sent by the police or reject the same and proceed with the enquiry of the complaint. But there cannot be any controversy as to the effect of accepting the report of the Police by the Judicial Magistrate, making it as a judicial order. In Tarigopula Venkata Ramdas v. State of Andhra Pradesh (1990 MLJ (Crl) 694), the Andhra Pradesh High Court following the view of this Court, has held that when the Magistrate after accepting the redport of the Police that the case was mistake of law and closed it, the police cannot re- investigage and the Magistrate also cannot act on the charge-sheet filed by the police adfter the re-investigation. It is in view of these judicial pronouncements, the learned counsel for the petitioners Mr. Selvam would contend that the investigation by the CB. C.I.D Police on the second complaint sent by the complainant in 1991 is not sustainable and the complaint has to be quashed. No doubt there cannot be any controversy of the above legal position. But in this case, the important point to be noted is that though Virugambakkam Police is said to have sent the report to the Magistrate on 22.4.90, referring the same as civil dispute, for about four years, nothing was heard of and only on 23.12.1994, the report of the police was accepted by the Judicial Magistrate and the second complaint by the respondent complainant was filed even on 6.5.1991, i.e., three years before the acceptance of the report by the Judicial Magistrate. Therefore, this case stand on a different footing.
6. The learned Government Advocate (Criminal Side) referring to Section 173(8) Code of Criminal Procedure argues that even after sending the report to the court, the police is entitled to reinvestigate the case on any further evidence and when such power is conferred under the Code to the Police, the C.B. C.I.D. Police is entitled to investigae the case in the year 1991 as the report of the Vdirugambakkam police was not accepted by the court till 1994. I shall reproduce Section 173(8) of the Code of Criminal Procedure, which reads as follows:
“173. Report of Police Officer on completion of Investigation:
(8) Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the Officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section(2).”
Under this Section, even after the police report being forwarded to the Magistrate, the police has got every right to re- investigate the case on any further evidence and thereafter forward a fresh report and the Magistrate has a discretion either to accept it or reject it. But the powers for further investigation by the police cannot be disputed till the first report was accepted by the police because once the report is accepted, it becomes a judicial order precluding the police to again investigate. In the light of this Section, if we look into this case as mentioned above, though the first complaint was filed by the respondent on 2.3.90 before the learned Magistrate, he did not hear anything about this complaint for nearly a year and thereafter he was forced to send another complaint on 6.5.91 to the Superintendent C.B. C.I.D It should be borne in mind that on the date of the second complaint and also on the date when this complaint was registered in AFIR No, 210/91, there was no order passed by the Judicial Magistrate accepting the Police report sent by Viaigambakkam Police. As the bar for the second investigation or further investigation will be only if the report was accepted and a judicial order was passed, whereas in this case that has not happened till December 1994, there was no legal bar for the CB. C.I.D. Police to register the case against the petitioner herein and investigate the allegations. It is true that the complaint “had not mentioned about the first complaint in this second complaint to the CB.C.I.D. Police. But that will not any way affect his right and also the right of the C.B.C.I.D. Police to investigate the allegation. When Section 173(8) Cr.P.C. empowers the same police to take up a further investigation of the case before the report was accepted by the Magistrate, that power is available to even’ police including the C.B.C.I.D. Police though it is a different branch of the investigating agency. This court is Nallaya (Gounder v. Thiruvengadam (1992 Law Weekly (Crl) 316) held that even if the Magistrate had accepted the report of the investigation agency referring the case as mistake of fact, the second complaint before the Magistrate on the same facts is maintainable when notice was not given to the complainant by the Magistrate for lodging the first complaint. Anyhow, the embargo for the second investigation is only in the case when there was already a judicial order accepting the referred charge-sheet of the police. As mentioned above, on the date when the second complaint, was lodged, nearly one year after the first complaint there was no order of the Judicial Magistrate to dislodge the Police’s power of further investigation.
7. Even though the learned Judicial Magistrate, Poonamallee, had referred the Private complaint of the respondent herein under Section 156 Cr.P.C. for investigation, the learned Magistrate had completelty closed his eyes thereafter with regard to the report from the police. This is a shocking feature showing the utter carelessness and disinterest displayed by the learned Magistrate in discharging his duties. He should have verified the registers maintained by him relating to the complaints forwarded to the police under Section 156 Cr.P.C. and if he had not received any report within a reasonable time, he should have taken further action as contemplated under the Code. It appears that he did not look into the concerned registers thereafter though the police would say that they had sent the report within two months after the receipt of the complaint from the court. Even if the report sent by the police was lost in transit, the learned Judicial Magistrate ought to have been careful and reminded the police to forward the report. It is only in the year 1994 December when the Judicial Magistrate was asked to forward the report, the Judicial Magistrate seems to have woken up from his slumber and searched for the report and began to enquire the conerned police as to the fate of the complaint forwarded by him. For this fault on the part of the Magistrate, the aggrieved party namely the complainant cannot be made to wait endlessly awaiting for the result of his complaint. Therefore, naturally having waited for one year, he filed the second complaint to the C. B.C. ID. Police, who registered the case. Therefore, in the light of the law on the subject, there was no bar for the C.B.C.I.D. Police to investigate the case on the complaint of the respondent herein and the proceeding of the C.B.C.I.D. Police in AFIR 210/91 cannot be quashed.
8. The learned counsel Mr. Selvam contended that there was inordinate delay on the part of the complainant in lodging the complaint and complaint reads that it was only a civil dispute between the parties and therefore, the police cannot be allowed to investigate this case. The complainant has alleged mat accused lured him to send the money to him from a foreign country on the promise of purchassing properties in his name but he was cheated and neither the property was purchased in his name nor money was returned to him and therefore the accused has committed the offence under Section 420 Indian Penal Code. The allegations in the complaint, make out an offence to be dealt with under the penal laws. The learned Government Advocate (Criminal side) refers to the Police Standing Order 507(8) which empowers the C.B.C.I.D Police to take up investigation in the case of the offence of cheating. Therefore, there is nothing wrong in the C.B.C.I.D. Police registering the case for investigation. In Union of India v. B.R. Bajaj (1994 Crl, L.J. 2086), the Supreme Court has held that when the First Information Report contained some important allegations which make out a cognizable offence against a person, he cannot seek to quash the investigation even in the stage of registration of the First Information Report as it was only a beginning of the investigation quashing of the First Information Report will not be proper. In the light of the observation of the Supreme Court, the Petitioner is not entitled to ask for quashing the First information Report pending against him.
9. It appears that after the order of the Judicial Magistrate, Poonamallee, recording the referred charge-sheet of Virugambakkam Police on 23.12.94, a notice has been sent to the complainant in this case and the complainant also seems to have now filed a revision against the order of Judicial Magistrate. The filing of the revision against the order of the Judicial Magistrate is the right of the complainant and at the same time, the C.B.C.I.D. Police has got the right of investigation on the complaint given by the aggrieved person. Therefore, it is left to the discretion of the complainant to withdraw the revision filed by him in view of the fresh investigation taken up by the C.B.C.I.D Police. In case if his revision is allowed, there cannot be two separate investigations one by Virugambakkam Police and the other by the C.B.C.I.D. Police. It is for the higher police officers to take up the investigation by one of these agencies. In view of the legal position referred as above, the petition is not sustainable.