JUDGMENT :

1. The petitioners, through the medium of present petition, have impugned the FIR No.49//2015 under Section 420 RPC of Police Station, Pattan, registered pursuant to order dated 27.02.2015, passed by the Judicial Magistrate, 1st Class, Pattan.

2. The FIR (supra) has been impugned by the petitioners on the ground that respondent No.2 has no locus to file the complaint on the basis of alleged cheque of Rs.2,00,000 (rupees two lakhs) issued by one Santosh Asrafi Lal Gupta in favour of one Bashir Ahmad Pall and the cheque in question was never issued in favour of respondent No.2 by the petitioners. It is also stated that the allegations are only against the petitioner No.1-Anil Kumar and there is no allegation of any transaction of petitioner No.2 with the complainant/respondent No.2. It is further averred that the allegations levelled in the complaint by the respondent No.2 are civil in nature and no offence is made out on the basis of the allegations levelled in the complaint.

3. Mr. Mudasir Bin Hassan, learned counsel for the petitioners, argued that once the learned Magistrate had directed the SHO Pattan to conduct enquiry under Section 202 of the Code of Criminal Procedure, subsequent direction for the registration of FIR could not have been issued. He further submitted that the dispute between the parties, if any, is primarily civil in nature and no criminality is involved.

4. Per contra, Mr. Gulzar Ahmad Bhat Sopori, learned counsel for respondent No.2, vehemently argued that the petitioners had duped the respondent No.2 of his hard earned money, as such, the learned Magistrate was right in directing the registration of FIR.

5. Heard and perused the record.

6. The perusal of the record reveals that an application was submitted by respondent No.2 against the petitioners before learned Judicial Magistrate, 1st Class, Pattan, for directing SHO, P/S, Pattan, to register FIR against the petitioners. It was stated in the complaint that the respondent had borrowed an amount of Rs. 29,65,077.00 from the respondent No.2 and did not return back to him. It appears that the learned Magistrate was not satisfied in respect of truthfulness of allegations, therefore the learned Magistrate vide order dated 18.03.2015, forwarded the complaint to SHO, P/S, Pattan, for enquiry under Section 202 of Cr. P. C. On the receipt of the report, the learned Magistrate on 27.03.2015 passed the following order:

Received report from SHO, P/S Pattan under Section 202 Cr.P.C. The report reveals that there is some transaction inter se parties which has resulted into scuffle and dispute between the parties, wherein present applicant finds cheated. In view of the report of the police, the SHO is directed to register a case under relevant provisions of law and submit compliance on or before 30th March, 2015.

7. Pursuant to the above order, FIR No.49/2015 under Section 420 RPC was registered against the petitioners by Police Station, Pattan and after investigation charge-sheet also has been filed. The sole question which arises before this Court is as to whether once the matter was referred to the police for investigation under Section 202 Cr.P.C, the learned Magistrate was competent to direct the registration of FIR or not. In this respect, law is well settled that once the Magistrate orders an enquiry/investigation under Section 202 Cr.P.C and the investigation/enquiry report is submitted before the Magistrate, the Magistrate can either issue the process against the accused or dismiss the complaint if no offence is made out but in no manner, he can direct the police to register FIR under section 156(3) Cr.P.C. In “Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 SCC OnLine SC 569”, the Hon’ble Supreme Court has examined the scope of investigation in terms of section 156(3) and in terms of section 202 Criminal Procedure Code and it has been held as under:

Difference in the power of Police to register and investigate an FIR under Section 154(1) read w