Point of Law : An order under Section 156 (3) of the Code is revisable, the same would amount to clothing the Sessions Court with the power of quashing the FIR or investigation. Such power is conferred only on the High Court under section 482 of the code or under Article 226/227 of the Constitution of India.

ORDER :

1. The petitioner has filed the present Cr.M.P. under Section 482 of the Cr.P.C. challenging the order passed by the Additional Sessions Judge (F.T.C.) Kabirdham in Criminal Revision No. 24/2016 whereby learned Revisional Court, while dismissing the petition of the petitioner, has affirmed the order of the registration of criminal case against the petitioner vide order dated 13.05.2016 passed by the Chief Judicial Magistrate, Kawardha, District – Kabirdham passed in Criminal Case No. 452/2016.

2. The brief facts projected by the petitioner are that the petitioner is son of Late Kamla Bai Vaid and nephew of respondent No. 1 Champa Lal Vaid. It is submitted that mother of the petitioner and respondent No. 1 jointly owned property at Kawardha and some portion of the said property was acquired by Municipal Council Kawardha for the purpose of widening of the road. An amount of Rs. 3,52,460.00 was paid to respondent No. 1 and Kamla Bai jointly on 21.05.2008 after deducting the amount of TDS of Rs. 40,472/-.

3. The respondent has made complaint before the Station House Officer in the year 2012 that the petitioner has illegally withdrawn amount of T.D.S. by committing offence of cheating under Section 420 IPC. It has been alleged that refund of TDS was neither received by respondent No. 1 nor Kamla Bai. The police submitted its report mentioning therein that the complaint is not found cognizable. Thereafter, respondent No.1 filed a complaint case under Section 200 of the Cr.P.C. on 25.02.2013 before Chief Judicial Magistrate, Kawardha for the offence punishable under Sections 420, 467, 468 and 471 of IPC. The learned Magistrate called report from the concerned police station and without considering the report submitted by the police, registered the complaint for the offence under Section 420 IPC vide order dated 13.05.2016. The petitioner preferred criminal revision before the Sessions Court and learned Revisional Court dismissed the criminal revision vide its order dated 28.01.2017.

4. The learned counsel for the petitioner would submit that the Magistrate has committed error of law by dismissing the revision filed by the petitioner without considering the subject matter of the complaint minutely and documents placed on record. He would further submit that the amount of refund from the income tax department is only payable to the PAN Card holder, no offence of cheating is possible. He would further submit that Kamla Bai was having the Pan Card and the refund amount by cheque has also been paid to her, therefore, the order passed by the Revisional Court on 28.01.2017 and registration of complaint by the Judicial Magistrate may kindly be set aside.

5. On the other hand learned State counsel has also filed return in which the State has said that the order passed by the Judicial Magistrate First Class registering the complaint under Section 420 IPC against the petitioner is legal, justified as the petitioner has withdrawn the amount through Pan No. AGRPB2219H which belongs to the petitioner. Therefore, the petitioner has committed offence under Section 420 IPC. Learned Judicial Magistrate rightly registered the complaint against which revision petition filed by the petitioner has also been rejected. Respondent No. 1 has not filed return and would support the order of the revisional Court.

6. I have heard the learned counsel for the parties and perused the record.

7. This Court vide its order dated 13.07.2017 has called the record of the Court below. Before adverting to the legal submission raised by the parties, this Court has to examine whether the registration of the complaint by the Judicial Magistrate is revisable before the Revisional Court by way of revision under Section 397 of the Cr.P.C. or not? It is necessary to extract Section 397 of the Cr.P.C.:-

“Section 397 in The Code Of Criminal Procedure, 1973- Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine the record