IMPORTANT POINT
Sanction for prosecution--Cheating--Where inter-alia allegations are of cheating and tempering with the official record, no sanction under Section 197 Cr.P.C. was required.

Rajesh Bindal J.:-Prayer in the present petition is for setting aside the order passed by the Judicial Magistrate Ist Class, Sonepat whereby in a complaint filed under Section 420/467/468/471 IPC, the petitioner has been summoned vide order dated 21.01.2006. The challenge is also to the order dated 20.09.2006 passed by the learned Additional Sessions Judge, Sonepat whereby that of the learned Judicial Magistrate Ist Class was upheld in revision filed by the petitioner.

2. Briefly, the facts as stated in the petition are that respondent No.2-complainant filed a complaint against the petitioner and another accused with the allegation that respondent no.2-complainant was cheated by the petitioner in connivance with other person and the money deposited by him in the Post Office was mis-appropriated by them with connivance of each other. On recording of statement of the complainant, the Court was prima-facie not satisfied to issue process to the petitioner, accordingly direction was given to the police to investigate the matter under Section 202 Cr.P.C. On receipt of report of the police after investigation, the learned Judicial Magistrate Ist Class issued process against the petitioner vide impugned order dated 21.01.2006. In revision before the learned Addl. Sessions Judge the petitioner failed.

3. Learned counsel for the petitioner submitted that the mere fact that the process was not issued to the petitioner merely on the statement of respondent no.2-complainant under Section 200 Cr.P.C. shows that the Court was not prima-facie satisfied with the allegation made in the complaint. It is for this reason only that the police was directed to investigate the allegation. Thereafter, without even considering the report submitted by the police, process has been issued against the petitioner. Further submission is that the petitioner was then Post Master at Head Post Office, Sonepat. Accordingly, the petitioner being a public servant sanction for his prosecution was pre-requisite under Section 197 Cr.P.C. before prosecution could be initiated against him. Further it is submitted that it is Manohar Lal, who had cheated the respondent no.2-complainant and not the present petitioner and he had nothing to do. Whatever was done by the petitioner was in his official capacity. It is further submitted that as for the same offence FIR No. 268 dated 09.11.2004 already stood registered at Police Station Sonepat, the complaint was not maintainable.

4. Learned counsel for respondent No.2 raised a preliminary objection regarding the maintainability of the present petition filed under Section 482 Cr.P.C. stating that the petitioner having availed of his remedy of revision before the learned Additional Sessions Judge cannot file the present petition under the garb of quashing under Section 482 Cr.P.C. once the second revision is specifically barred.

5. Replying to the arguments of learned counsel for the petitioner on merits, learned counsel for respondent no.2-complainant submitted that the complainant in the present case has been cheated in active connivance with the petitioner as Rs. 3 lacs had been withdrawn from his account by forging his signature as change in specimen signature was effected in the records. In fact it was the petitioner who had directed the complainant to contact Manohar Lal-agent, so he cannot be permitted to plead ignorance.

6. As far as FIR is concerned, the submission is that the complainant had not lodged any FIR. It was only that his statement was recorded during investigation in FIR regarding a scam in the post office where large number of people were cheated. It is further submitted that report submitted by the police was duly considered by the Court below. As regard the sanction under Section 197 Cr.P.C. is concerned, relying upon the judgment of Hon’ble the Supreme Court in Parkash Singh Badal and another v. State of Punjab and others, [2007(1) Law Herald (SC) 218]:(2007) 1 Supreme Court Cases 1, the submission