Cognizance by Magistrate – The Magistrate is having absolute discretion either to send the application to the police under Section 156 of the Code or himself take cognizance

Mr. Raj Shekhar Attri, J.(Oral) - Through this petition filed under Section 482 of Code of Criminal Procedure (in short, “Cr.P.C.”), the petitioner sought setting aside of order dated 19.4.2017 passed by learned Judicial Magistrate, 1st Class, Faridabad vide which he declined to register FIR under Section 156 (3) of Criminal Procedure Code (in short, “the Code”) rather took cognizance under Section 200 of Cr.P.C. of the complaint and also assailed order dated 20.12.2017 (Annexure P-4) passed by learned Revisional Court vide which revision filed by the petitioner was dismissed.

2. Brief facts as set out by first revisional court are as under: -

“That petitioner had friendly relations with Bipin Somastamb and his brother Bharat Somastamb till the year 2015. That Bipin Somastamb and Bharat Somastamb, i.e., the respondents, wanted to purchase cars and since they were blacklisted by banks as their Cibil records are not in accordance with the bank norms for grant of loan, they requested the petitioner to take loan for cars in petitioner’s name and they will be regularly paying installments. They enticed the petitioner taking recourse to his friendships and succeeded in brainwashing and enticing the petitioner.

That being enticed, petitioner applied for loan and purchased two cars i.e. Tata Strom Car bearing No.HR- 51-AU-8182 in January, 2013 after availing the loan from State Bank of India. The petitoner was further enticed to purchase another car i.e. Hyundai Verna Car bearing No.HR- 51-AW-9987 in March, 2013 after availing the loan from Punjab National Bank.

That in view of the friendly relations with the aforesaid accused persons and the assurances given by accused persons at the time of purchase of said cars and obtained the possession of the said cars from the petitioner for their personal use and assured the petitioner that they shall continue to deposit the bank EMIs of the aforesaid cars to the respective banks and the petitioner need not worry about the same. However, despite using the said cars, the accused persons intentionally and malafidely did not pay the bank EMIs contrary to the assurances given to the petitioner, apparently with a view to cheat and defraud the petitioner in preplanned manner.

That the petitioner asked the accused persons several times to deposit the EMIs as due to the default in the repayment of EMIs, the petitioner is under sever tension and distress due to calls from the banks for recovery of the defaulted EMIs of the said cars. The accused persons assured the petitioner for repayment of all the pending EMIs of the aforesaid cars. That the petitioner due to intentional and malafide defaults of the accused persons in repayment of EMIs, has not been able to pay the EMIs of the said cars to banks since the dates of defaults in payment of EMIs by the accused persons.

That the petitioner had obtained a loan of Rs. 9,00,000/- from Punjab National Bank and loan of Rs. 10,00,000/- from State Bank of India. As both the aforesaid cars have been used and possessed by Bharat Somastamb and his family members since the date of their purchase, he was liable t pay the EMIs of the aforesaid cars to the petitioner. He was also liable to return the aforesaid loan to the petitioner.

That in October, 2015, the accused persons citing their friendly relations with the petitioner and assuring him that they need to sell both the aforesaid cars and as accused No.1 is well versed in the sale and purchase of cars and he would be able to a prospective buyer for sale aforesaid cars and want to pay petitioner’s money with help of sale proceeds. They further represented that on finding customer, they might have to affect the transfer instantaneously as the customer might not be willing to wait to get the papers signed from the petitioner. Therefore for enabling themselves to get money for cars from customer immediately, Bharat Somastamb and Bipin Somastamb took signatures of petitioner on blank undated forms/documents f