The Magistrate's direction for police investigation under Section 156(3) of Cr.P.C. requires judicial discretion, ensuring a prima facie case is established before proceeding.

ORDER :

1. This petition has been filed challenging the order dated 01.04.2024 passed by the learned Metropolitan Magistrate for Exclusive Trial of CCB Cases (Relating to Cheating Cases in Chennai) and CBCID Metro Cases, Egmore, Chennai in Crl.M.P.No.25130 of 2023 in CNR TNCHof-035792-2023, thereby directed the Deputy Commissioner of Police to appoint an office in the level of Inspector of Police to enquiry the complaint lodged by the first respondent and whether, if it is necessary registered an FIR or to file report within a period of fifteen days from the date of receipt of that order and investigate into the matter and file report within a period of three months.

2. The petitioners are the proposed accused persons in the complaint lodged by the first respondent. On the complaint lodged by the first respondent, the learned Magistrate issued direction under Section 156(3) of Cr.P.C., thereby directed the Deputy Commissioner of Police to engage an officer not below the rank of Inspector of Police to enquiry the complaint dated 07.12.2022 and file report.

3. The learned Senior Counsel appearing for the petitioners submitted that the petitioners are being bankers, they have nothing to do with the allegations leveled against them and there is absolutely no prima facie case to enquire further. The first respondent suppressed several facts such as initiation of SARFAESI proceedings in O.A.No.162 of 2023 on the file of the Debt Recovery Tribunal-3, Chennai and obtained direction from the Magistrate. Further the suit in C.S. (Comm Div) No. 178 of 2023 also filed before this Court by one Mahalaxmi Inn Private Limited and the same was suppressed by the first respondent. If the pendency of these proceedings disclosed before the learned Magistrate, no directions would have been issued to conduct enquiry into the complaint lodged by the first respondent. The learned Magistrate without application of mind mechanically issued direction and without even gone through the complaint.

3.1. He further submitted that the first respondent availed financial assistance to the tune of 27.43 croroes. Thereafter, the first respondent committed default and their loan amount has been declared as non-performing assets which resulted in initiation of proceedings under the SARFAESI Act. Accordingly, the petitioners served notice under Section 13(2) of the SARFAESI Act. On receipt of the same, the first respondent requested for one time settlement. It was considered favorably and as per the terms of the settlement a sum of Rs.20,00,000/- were to be deposited in a time bound manner. The last installment was payable on 31.03.2022. However, one time settlement was also not effected and committed default. Therefore, the petitioners had terminated one time settlement scheme on 30.11.2021. Hence, no offence is made out as against the petitioners as alleged by the first respondent.

3.2. In support of his contention, he relied upon the judgment reported in Vinubhai Haribhai Malaviya and Ors. Vs. State of Gujarat and Anr., 2020 (2) LW (Crl) 562 in which the Hon'ble Supreme Court of India held that the learned Magistrate before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath. He also relied upon another judgment of the Hon'ble Supreme Court of India in the case of Om Prakash Ambadkar Vs. The State of Maharashtra & Ors. in Crl. Appeal No.352 of 2020 dated 16.01.2025, which held that before approaching the Magistrate under Section 156(3) of the Cr.P.C., which is a discretionary remedy as the provision proceeds with the word 'may'. The Magistrate is required to exercise his mind while doing so. He should pass orders only if he is satisfied that the information reveals commission of cognizance offences and also about the necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the pol