The requirement to file an affidavit in support of a complaint under Section 156(3) CrPC is mandatory, and failure to comply results in dismissal of the complaint.

JUDGMENT :

M. M. NERLIKAR, J.

Heard.

2. By way of this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the judgment and order dated 14.08.2024 passed by the Additional Sessions Judge, Nagpur in Criminal Revision No.226/2023 and the order dated 20.07.2023 passed by the learned Judicial Magistrate First Class Court No.6, Nagpur in Criminal Misc. Application No. 1600/2023, wherein the complaint filed by the petitioner under Section 156 (3) of the Code of Criminal Procedure (“Code”) was dismissed.

3. Brief facts of the case appears to be:-

The petitioner is a partnership firm dealing in the business of real estate and construction through its partner. The respondent No. 1 is cousin brother of the partner whereas respondent no. 2 is the mother of respondent no. 1.

The respondent no. 2 owned and possessed agricultural land admeasuring about 0.64 hectares situated at Khasra no. 177/2 Patwari Halka No. 74, Mouza Borkhedi, Gram Panchayat Borkhedi which was agreed to be sold to petitioner- firm vide agreement for sale dated 06.09.2004 for a consideration of Rs. 16,00,000/-. Subsequently, the entire consideration has been paid by the petitioner-firm. Thereafter, the respondent no. 2 executed power of attorney in favour of petitioner-firm on 27.01.2005 before Sub-Registrar, Nagpur. However, the petitioner-firm through its partner received a legal notice dated 25.08.2015 issued by respondent no. 1 stating that respondent no. 2 has revoked the aforesaid power of attorney in view of gift deed executed by respondent no. 2 in favour of respondent no. 1 to which the petitioner-firm replied on 07.10.2015. Pursuant to the same, the petitioner-firm challenging the gift deed filed a Civil Suit bearing RCS No. 1285/2015 which was eventually dismissed. As the petitioner- Firm was having business in real estate and construction it had sold bungalows on the said plot to prospective buyers on receipt of payment by executing deed of conveyance.

In view of above facts, the petitioner-Firm filed a police complaint in Sadar Police Station, Nagpur on 24.10.2015 complaining of cheating and fraud, however, the police authorities refused to take action. Therefore, a criminal complaint under Section 156 (3) r/w section 199 and 200 Code was filed before the Trial Court seeking directions to register FIR against respondent Nos. 1 and 2 under sections 405, 406, 417,418, 419 and 420 r/w section 34 of IPC. However, vide order dated 20.07.2023 the Magistrate dismissed the complaint in Criminal Misc. Application No. 1600/2023 which was challenged in Criminal Revision No. 226/2023 before the Sessions Judge which was also dismissed vide order dated 14.08.2024. The aforesaid orders are challenged in the petition.

4. The learned counsel for the petitioner submits that the learned Magistrate and the Revisional Court has miserably failed to take into consideration that mere non-filing of an affidavit in support of the complaint is not fatal as it is a curable defect. He submits that before passing of the order of dismissal by the Magistrate, the Magistrate ought to have permitted the petitioner to file affidavit, however by not permitting the same, the Magistrate has failed to apply the principles of natural justice which amounts to denying the petitioner from filing of an affidavit. He submits that the Magistrate ought to have considered the solemn affirmation which appears at the foot of the application as the contents of the solemn aff