Point of law: Cheating – Cognizance of offence - Once the learned Magistrate proceeded to record the sworn statement on the basis of the protest petition that itself is taking of the cognizance

ORDER :

This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the order passed in Crl.R.P.No.66/2019 dated 25.11.2019 on the file of I Additional Sessions Judge at Kolar and uphold the order of taking cognizance by the learned Magistrate on such terms and conditions as this Court deemed fit in the facts and circumstances of the case.

2. The factual matrix of the case is that the petitioner herein has filed a private complaint under Section 200 of Cr.P.C. and the same is numbered as PCR No.132/2016 making the allegation against the respondents herein that they were indulged in creation of documents by impersonation with an intention to knock off the property belongs to the complainant bearing Sy.No.29/P4 of Chinapaganahalli Village, Tekal Hobli, Malur Taluk to the extent of 1 acre 9 guntas which was granted by the Government in favour of the petitioner and his family. The Saguvali chit was issued in the name of Smt. Jayamma, the wife of the petitioner herein. The allegation made against the respondents herein is impersonation, forgery, fabrication and cheating invoking the offences punishable under Sections 419, 420, 465, 468, 471 read with Section 34 of IPC.

3. Learned Magistrate after having received the complaint referred the matter invoking Section 156(3) of Cr.P.C. to the Investigating Officer to investigate and file the report. The Investigating Officer after conducting the investigation has filed the ‘B’ report. After filing of the ‘B’ report, notice was issued to the complainant and the complainant in turn he has filed the protest petition. The learned Magistrate after filing of the protest petition, posted the matter for enquiry. Having recorded the sworn statement of the complainant and marking of documents, heard the complainant counsel and passed the order rejecting the ‘B’ report invoked Section 204 and issued the process. While issuing the process, in the operative portion of the order, referred to the cognizance of the offences punishable under Sections 419, 420, 465, 468, 471 read with Section 34 of IPC is taken against accused Nos.1 to 4 and issued the summons to accused Nos.1 to 4, the same has been questioned in Crl.R.P.No.66/2019. The Sessions Court after considering the material vide its order dated 25.11.2019 allowed the Revision Petition and set aside the order dated 02.11.2018 passed by the learned Magistrate, issuance of process and matter stands restored with a direction to follow the procedure has discussed in the order only after looking into the provisions of Section 200 of Cr.P.C., meticulously passed an appropriate order in accordance with law. Hence, the said order of the Revisional Court is challenged before this Court.

4. The main contention of the learned counsel for the petitioner in this petition is that the Magistrate was well within the law in considering the protest petition and thereafter setting aside the ‘B’ report and considering the sworn statement issued the process, which is as per the procedures mentioned in the code of criminal procedure and the impugned order passed is in ignorance of the same is patently illegal and liable to be set aside. The Sessions Court was of the wrong view that the Magistrate has considered the sworn statement and thereafter set aside the ‘B’ report is patently erroneous. Considering the order sheet, which clearly depicts that after receipt of the protest petition, the Magistrate was set aside the ‘B’ report and thereafter considered the sworn statement after taking cognizance has issued the process, which is clearly as indicated by the Hon’ble Supreme Court as well as this Court under Code of Criminal Procedure. The law clearly mandates that on the report issued by the Investigating officer, the Magistrate ought to notify the complainant about the report filed and call for objections to the report (protest petition) and the Magistrate has to consider the report, accept the said report and call upon the complainant to file a fre