IMPORTANT POINT
Non-compliance with procedural requirements under Section 154 (1) (3) of Cr.P.C. and the necessity for proper application of mind by the Magistrate before passing an Order under Section 156 (3) of Cr.P.C.

JUDGMENT :

SHYAM C. CHANDAK, J.

1. By this Petition filed under Article 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, the Petitioner is seeking to quash the Order dated 28th February 2014, passed in Criminal Complaint No. 26(A)/Misc/2013 by the Metropolitan Magistrate, 8th Court, at Esplanade, Mumbai and MECR No. 1/2014 registered with Azad Maidan Police Station, pursuant to the said Order.

2. Heard Mr. Lalla, learned counsel for the Petitioner, learned APP for the State and Mr. Girish Kulkarni, learned Senior Advocate for Respondent No. 2. Perused the record. It be noted here that, initially, this Petition was heard on 24th January 2024 and closed for Order. On that day, Advocate for Respondent No. 2 was not present. Thereafter, vide Order dated 6th February 2024 passed in Interim Application No. 2235 of 2024, filed by the Respondent No. 2, Mr. Girish Kulkarni, learned Senior Advocate was heard at length on the same day and again the Petition was closed for Judgment.

3. Record indicates that, Rules was granted on 14th January 2015 and it was directed that, during the pendency and final disposal of this Petition, there shall be an interim relief in terms of prayer clause (d).

4. Respondent No. 2 had filed the complaint No. 26(A)/Misc/2013 in the Court of Metropolitan Magistrate, 8th Court, at Esplanade, Mumbai. In the said complaint it is stated that, the Respondent No. 2 (‘the Complainant’ for short) is a businessman and resident of Dubai since 1969. The Complainant has invested in an Indian company known as M/s. Varshraj Realtors Pvt. Ltd. (‘the company’ for short) established in 1995. The company’s 99.9% (approx.) shareholding belongs to the Complainant and his wife. The Complainant is the Chairman of the company. Since 1998, the company holds an irrevocable and detailed Development rights in a Plot, situated at Powai, Mumbai, India.

4.1 It is alleged that, the Petitioner (Original Accused) has filed a Suit No. 1418 of 2012, on 25th June 2012, before this Court, against the Complainant. It is alleged that, a Memorandum of Understanding (MOU) dated 25th July 2008, enclosed with the plaint is forged and fabricated document.

4.2 It is stated that, on 25th September 2012, the Complainant lodged the complaint (Exhibit ‘B’) with the Vice Consul, Consulate General of India, Dubai (U.A.E.) and vide letter dated 1st October 2012, the Vice Cousul, Consulate General of India, Dubail (U.A.E.) forwarded the said complaint to the Deputy Commissioner of Police, (Headquarters-1), Mumbai Police, Government of Maharashtra, Police Headquarters, D.N. Road, Mumbai, Maharashtra, India for their action according to law. Accordingly, the investigation was transferred to Azad Maidan Police Station, Mumbai and Officers of the said Police Station have investigated the matter.

4.3 That, one of the Associates for the Complainant obtained the opinion of the Handwriting Expert, Mr. Firoz Sheikh in respect of the forged MOU dated 25th July 2008. Said opinion given by the Handwriting Expert clearly shows that Complainant’s signature on the MOU has been forged. Hence, the Complainant written a letter dated 14th April 2013 to the Vice Consul, Consulate General of India, Dubai (U.A.E.) along with opinion of the Handwriting Expert and the said complaint was forwarded by the Vice Consul, Consulate General of India, Dubai (U.A.E.) vide their letter dated 17th April, 2013 to the Joint Commissioner of Police, Crime Branch, Mumbai. In turn, the said letter was forwarded to Azad Maidan Police Station, Mumbai for further investigation.

4.4 It is further stated that, Officers of Azad Maidan Police Station investigated the said matter properly and convinced that, the offence of cheating and forgery has been made out. However, the police misinterpreted the provisions under Section 195 of the Cr.P.C. and formed their opinion that, there is a bar to investigate the matter when the matter is pending before the concerned Court. It is