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2025 Supreme(All) 3973
HIGH COURT OF JUDICATURE AT ALLAHABAD
Vinod Diwakar, J.
Sudhir Kumar Goyal And Anr. - Applicants
Versus
State Of U.P. And Others - Opposite Party
APPLICATION U/S 482 No. - 1808 of 2025
Decided On : 12-08-2025
For the Applicant : Rajesh Kumar Mishra, Vimlendu Tripathi
For the Opposite Party : G.A.
Police are barred from registering FIRs for offences under special legislations where the statute mandates that cognizance can only be taken upon a written complaint by an aggrieved party or authorized officer. Such procedural mandates override standard police investigation powers and necessitate rigorous judicial scrutiny at the threshold.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138 and 142 - Indian Penal Code, 1860 - Sections 420 and 406 - Bharatiya Nagarik Suraksha Sanhita, 2023 - Criminal Procedure - Registration of First Information Report (FIR) under Special Acts.
(B) Legal Principle: Where a special law explicitly provides that cognizance of an offence shall be taken only upon a written complaint by the payee or an authorized person, the registration of an FIR by the police and subsequent investigation is legally impermissible. This procedural mandate overrides general powers regarding police investigations. (Paras 5, 6, 13, 27)
(C) Judicial Responsibility: Magistrates must scrutinize police reports upon receipt for compliance with statutory bars; mechanical cognizance results in unnecessary litigation and harassment of individuals. (Paras 22, 23, 24)
Facts of the case:
The complainant alleged fraudulent transactions regarding property, which resulted in the registration of an FIR incorporating both general penal provisions and specific offences related to the dishonour of cheques. The accused challenged the proceedings, arguing that the mandatory procedure of filing a private complaint had been bypassed.
Findings of Court:
The Court determined that for specific special laws, the police lack the authority to register an FIR. The magistrate is obligated to ensure that the statutory requirement of initiating prosecution via a complaint from the competent authority is strictly followed.
Issues: Whether the registration of an FIR is legally valid for offences under special legislations that restrict the initiation of prosecution solely to written complaints by competent persons.
Ratio Decidendi: The statutory bar on taking cognizance except upon a written complaint serves as a mandatory procedural prerequisite, which precludes the authority of the police to conduct investigations or submit reports for such offences.
Result: Application allowed; the cognizance and framing of charges concerning the cheque-related offences were quashed, with the trial court directed to proceed for the remaining penal offences according to law.
| Table of Content |
|---|
| 1. factual and procedural history of plots booking and subsequent complaint. (Para 1 , 2 , 3 , 4) |
| 2. bar on police registration of fir for section 138 ni act and requirement for private complaint. (Para 5 , 6) |
| 3. systemic analysis of special acts where fir registration by police is impermissible. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 4. maintainability of criminal proceedings for ipc offenses despite procedural illegalities in special act cases. (Para 18 , 19) |
| 5. directions to police and magistrates to prevent improper fir registration under special acts. (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30) |
JUDGMENT :
Vinod Diwakar, J.
1. Heard Shri Vimlendu Tripathi, learned counsel for the applicants, Shri Kuldeep Singh Chauhan, learned A.G.A. for the State, and perused the material available on record.
2. The applicant has challenged the impugned order of framing charge dated 18.7.2024 and cognizance order dated 3.6.2024, passed in Criminal Case No. 6627 of 2024, titled as State v. Sudhir Kumar Goyal and another, arising out of Case Crime No.18 of 2024, under Sections 420, 406 IPC and Section 138 of the Negotiable Instruments Act, 1881, registered at P.S. Kotwali Dehat, District Bulandshahr, which is pending trial before the learned Chief Judicial Magistrate, Bulandshahr.
3. The brief facts of the case are that the informant booked two plots in Radhika Enclave, Meerut Road, Bulandshahr, in January and April 2023, making total payments of Rs.30,33,100/- through cash and cheques issued in favour of Mr. Jai Prakash, and handed over the said cheques to the applicant Sudhir Kumar Goyal. However, instead of executing the sale deed, the applicant allegedly sold the plots to the third party without knowledge and consent of the complainant. Upon cancellation of the bookings, the applicant issued four refund cheques in favour of the complainant, all of which were dishonoured, on presentation. Thereafter, pursuant to a complaint filed by the opposite party no.2/complainant, the aforesaid FIR has been registered against the applicant under section 138 of N.I. Act- besides other sections of IPC.
4. After registration of FIR, the Investigating Officer conducted a detailed investigation and submitted a charge-sheet against the applicant under Sections 420, 406 IPC, read with Section 138 of N.I. Act. Upon submission of the charge-sheet, the learned Magistrate took cognizance of the offences and issued summon to the applicant by impugned order dated 03.06.2024. Thereafter, by impugned order dated 18.07.2024, the learned trial court, having found sufficient grounds, proceeded to frame charges against the applicant for the aforesaid offences.
5. Shri Vimlendu Tripathi, learned counsel for the applicant submits that the registration of the First Information Report and the consequential proceedings initiated by the police, followed by cognizance order, passed by the Magistrate, are in clear violation of the mandate of Section 142 of the N.I. Act. It is submitted that Section 142 of the N.I. Act prescribes a specific procedure for initiation of proceedings under Section 138 of the N.I. Act, wherein it is categorically provided that no court shall take cognizance of any offence punishable under Section 138 of the N.I. Act except upon a written complaint made by the payee or the holder of the cheque before the Magistrate. Section 142 of N.I. Act is reproduced hereinbelow for ready reference:
“142. Cognizance of offences-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) No Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque.”
6. It is further submitted that the entire proceedings arising out of the prosecution case are barred by the provisions of Section 142(a) of the N.I. Act, 1881. In support of this contention, learned counsel for the applican
