A Magistrate can take cognizance of an offense based on the preliminary evidence led by the complainant, and a revisional court cannot order further investigation unless there are compelling reasons to do so.

JUDGMENT

1. The present petition was ordered to be listed alongwith SBCRLMP No. 5103/2018. On the joint request made by the counsel for the parties, SBCRLMP No. 5103/2018 has been decided today by a separate order of even date.

2. In the present case, accused petitioners have assailed the order dated 5.3.2018 whereby the cognizance of offences was taken against the petitioners for offences under Sections 420, 406, 467, 468, 471 and 120B IPC, alongwith the order dated 7.6.2018 passed by the court of Additional Session Judge (Women Atrocity Cases) No. 2, Kota whereby the order of cognizance was affirmed.

3. Briefly stated, the petitioners alleged that the respondent No. 2 had issued two cheques in their favour and the said cheques on presentation had bounced due to insufficiency of funds. Upon bouncing of cheques, the petitioners issued a statutory notice under Section 138 of Negotiable Instruments Act.

4. Mr. Suresh Sahni, learned Senior Counsel for the petitioners has contended that as a per-emptory measure the respondent No. 2 instituted a false complaint alleging that the petitioners have forged and fabricated the return memo issued by the bank. Learned counsel for the petitioners has contended that upon the complaint filed under Section 156(3) Cr.P.C, case FIR No. 126/2008 was registered against the petitioners at Police Station Kotwali, Kota.

5. Mr. Sahni, learned counsel for the petitioners has submitted that the investigating agency had rightly submitted Final Report in negative form holding that the dispute is civil in nature. Learned counsel for the petitioners has submitted that after preliminary evidence led by the complainant, the court of Magistrate came to conclusion that there is not an iota of evidence to try petitioners and hence, the complaint was dismissed. Learned counsel for the petitioners has further contended that aggrieved against the same, the respondent No. 2 filed a revision petition and in the said revision petition, further investigation was ordered.

6. Learned counsel for the petitioners has contended that further investigation could not be ordered by the revisional court below.

7. This Court vide a separate order of even date, on the ground that the order of revisional court below was not assailed immediately, and thereafter order of cognizance was passed, has saved the further investigation held by the investigating agency.

8. Learned counsel for the petitioners has submitted that the order of cognizance passed by the court of Magistrate after the report of further investigation was submitted is nothing but harassment to the petitioners. It is contended that the FIR lodged is nothing but counter blast to pressurize the petitioners not to pursue their remedy under Section 138 of Negotiable Instruments Act. Learned counsel for the petitioners has submitted that no offence is made out.

9. This Court in a petition filed under Section 482 Cr.P.C. cannot determine truth and veracity of the allegations levelled by the complainant/respondent No. 2 against the petitioners. The revision petition filed by the petitioners has already been dismissed by the revisional court below by affirming the order of cognizance. This Court being third court will not tread on the path of re-appreciation and re-evaluation of preliminary evidence led by the complainant.

10. This Court in earlier petition has already ordered that the case arising out of FIR in which impugned order of cognizance has been passed and two complaints filed under Section 138 of Negotiable Instruments Act shall be tried separately but simultaneously. Upon petition filed by petitioners, this Court has already ordered that the two complaints filed by the petitioners under Section 138 of Negotiable Instruments Act shall be decided within six months.

11. Considering that in the two complaints filed under Section 138 of Negotiable Instruments Act, the averments in the FIR are nothing but defence of accused in that case and in the FIR instituted by the respondent N