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Gujarat High Court
Judgename :K.J.VAIDYA
ARVINDBHAI RAVJIBHAI PATEL - Appellant
Versus
DHIRUBHAI SAMBHUBHAI KAKADIA - Respondent
MISC.CRI.APPLN. 2385 of 1991
Decided On : 01/06/1997
Held: In a given case, it cannot be ruled out that though at the initial stage there may not be any such intention to cheat yet with the passing of time, the dishonest intention not to pay the borrowed amount can certainly develop. For criminal offence and consequential punishment what is necessary is the element of "mens-rea" and this in a given a case can be there right from the beginning or that may as well develop subsequently and gain root making the person accused dishonest liable for the punishment. Thus, looking to the nature of allegations in complaint, and subsequent conduct of accused in not paying back loan amount it is indeed not possible for this Court to say at this stage that it does not contain the germs constituting prima facie offence of cheating against the petitioner-accused for taking the cognizance of the alleged offence by the learned Magistrate, under Sections 406, 420, 504 and 506(2) of IPC. If after taking loan for the considerable period the same is not paid till the date of complaint is filed, then from that point of time it can be prima facie said that he had the dishonest intention not to pay right from the beginning. If the law is not interpreted in this manner, dishonest persons would schemingly skip the law and defeat justice. That is not the way to handle criminal justice system. In this view of the matter, there is no question of quashing and setting aside the complaint filed by the respondent and accordingly, this petition deserves to be dismissed. (Para 4)
(ii) Criminal Procedure Code, 1973 - Section 156(3) - Power of Magistrate to direct police to investigate under - Scope of - While passing any order pursuant to the complaint, it must reflect total application of mind by the Magistrate – All Magistrates of the State are specifically directed to be quite discreet enough in not mechanically directing the police to investigate the case u/s 156(3) of the code - Unfortunate growing tendency on the part of some of the Magistrates to direct the police to investigate - Requires to be curbed - Complaint filed for offences u/ss 406, 420, 504, 506 IPC Complainant's case that accused failed to repay borrowed amount of Re. 90,000/- - Magistrate directed to himself proceed with the trial Order of Magistrate directing the Police u/s 156(3) Cr. P.C. to enquire and report back held not sustainable considering facts and circumstances of the case.
Held: In fact, if we peruse the allegations in the complaint, they are too simple requiring any assistance worth the name of the police to investigation the matter. And yet the fact remains that the learned Magistrate has quite curiously directed police to investigate under Section 156(3) of the Code and report back. As a matter of fact instead of directing the P.I. to investigate under Section 156(3) of the Code it was the duty of the learned Magistrate of his own to straightway take the cognizance of alleged offences and decide the case after recording the oral and documentary evidence as the case may be as led by the complainant and hearing the defence version. In fact, having regard to the facts and circumstances of the case, this is not at all the case where by any stretch of imagination the learned Magistrate needed any police assistance to inquire into the case. All the learned Magistrates of the State are hereby specifically directed to be henceforth quite discreet enough in not mechanically directing the police to investigate the case under Section 156(3) of the Code. When the allegations in the complaint are simple enough and further where the Court undoubtedly can straightway proceed to conduct the trial, in such cases the Court before which the complaint is filed shall neyer mechanically abandon its sacrosanct duty of recording the evidence and doing justice by passing a buck to the police for doing the needful. This is clear abdication and dereliction of duty. In fact, this Court in number of such cases have noticed quite unfortunate growing tendency on the part of some of the learned Magistrates to direct the police to investigate under Section 156(3) of the code and report reflecting total arm-chair relaxed attitude and non-application of mind. This is required to be curbed in the overall interests of justice. (Para 5)
Further: held: That the learned Magistrate should be clear and discreet enough before passing any order under Section 156(3) of the Code, so that some scheming unscrupulous complainant does not abuse the process of law making the learned Magistrate hand-tool of him. (Para 6)
Result: Petition dismissed.
( 1 ) PETITIONER by this Misc. Criminal Application under Sec. 482 of the Code of Criminal Procedure, 1973, has moved this Court, inter alia, praying for quashing and setting aside the proceedings by way of Criminal Case no. 66 of 1991 pending before the learned Chief Judicial Magistrate, Surat, initiated pursuant to the complaint filed by the respondent No. 3 for the alleged offences punishable under Secs. 406, 420, 504 and 506 of I. P. C.
( 2 ) FACTS and circumstances in brief leading to filing of this petition : The respondent No. 3 Dhirubhai Shambhubhai Kakadia filed a complaint against the petitioner-Arvindbhai R. Patel for the alleged offences punishable under Secs. 406, 420, 504, 506 (2) of I. P. C. before the learned Chief Judicial Magistrate, Surat. It is alleged in the complaint that the accused had developed friendly relations with him and had borrowed Rs. 90,000. 00 from him in the year 1988, which he badly needed for purchasing the building material in carrying forward his construction business. While taking the said loan, the accused had also shown his willingness to transfer his house bearing Block No. 26, situated in Hariom Society, Surat, in the name of the complainant. Trusting the words of the accused, complainant paid Rs. 90,000/ - in cash to him on the very day in presence of Vipulbhai and Valjibhai. Not only that, but the petitioner also transferred his aforesaid house in name of the complainant by executing a writing on a General Stamp Paper of Rs. 10. 00. Thereafter, according to the complainant, not only the accused failed to repay the borrowed amount of rs. 90,000/- for which he had repeatedly visited his house, but the house in question which was transferred to him, was also sold to somebody else. It is further the case of the complainant that on 31-3-1991 at 11-00 A. M. the accused met him on varachha Road and when he demanded Rs. 90,000. 00 from him, he immediately got enraged and stated that he has not executed any document transferring his house and he has not taken any loan from him. It is further alleged in the complaint that the accused while giving abuses further threatened that if he demanded the money, his hands and feet will not be safe. It is under these circumstances that the respondent no. 3 was constrained to file a complaint against the petitioner for the aforesaid alleged offences in the Court of the learned Chief Judicial Magistrate, Surat, wherein the learned Magistrate by his order dated 4-4-1991 directed the Police Inspector of the concerned area under Sec. 156 (3) of the Code to inquire and report back, giving rise to the present application for quashing and setting aside the impugned order.
( 3 ) HEARD Mr. C. J. Vin, learned Advocate appearing for the petitioner and learned A. P. P. Mr. Umesh Trivedi appearing for the respondent No. 1 - State. Respondent No. 3 - original complainant though duly served is absent.
( 4 ) MR. C. J. Vin, the learned Advocate appearing for the petitioner while challenging the impugned order, vehemently submitted that not repaying the borrowed loan was at the most civil wrong, not only that but there is indeed nothing in the complaint to remotely even indicate that the petitioner-accused had any intention to cheat at the time when he borrowed loan of Rs. 90,000. 00 from the complainant. 4. 1. Now, it is simply not possible to accept the above contention of Mr. Vin. Whether the accused had an intention to cheat right from the beginning or not is ordinarily and always a matter of evidence either to be adduced before the Court at the time of trial, or reasonably inferred from the attending facts and circumstances of the case as narrated in the complaint Apart this, assuming for the sake of argument even that there was indeed no intention of the accused at the time when rs. 90,000/- came to be borrowed and paid in cash. But then, in a given case, it cannot be ruled out that though at the initial stage there may not be any such intention to
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