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High Court Of Madhya Pradesh
K. L. SHRIVASTAVA
KRISHNAGOPAL - Appellant
Versus
PURUSHOTTAM - Respondents
CRI. REVN. PETN. 298 Of 1982
Decided On : 07/17/1986
CRIMINAL PROCEDURE CODE - SECTION 195(1)(A), 340 - INDIAN PENAL CODE - SECTION 182, 211 - ORDER FOR PROSECUTION - VALIDITY - CONDITIONS PRECEDENT - JUDICIAL DISCRETION - EXERCISE OF.
Fact of the Case:
The petitioner, who had filed a complaint against the non-applicant for cheating, was ordered by the Magistrate to be prosecuted for giving false information to the police (Section 182 IPC) and for filing a false complaint (Section 211 IPC). The petitioner challenged the order on the ground that the Magistrate had no jurisdiction to order prosecution under Section 182 IPC and that the order under Section 211 IPC was not justified.
Finding of the Court:
The High Court allowed the revision petition and set aside the impugned order. It held that the Magistrate had no locus standi to order filing of complaint in respect of the offence under Section 182 IPC as per Section 195(1)(a) of the Code of Criminal Procedure, 1973. As regards the offence under Section 211 IPC, the Court held that the Magistrate had not exercised judicial discretion in the light of all the relevant circumstances and had not considered the question of expediency as required under Section 340 of the Code.
Issues: 1. Whether the Magistrate had jurisdiction to order prosecution under Section 182 IPC? 2. Whether the order under Section 211 IPC was justified?
Ratio Decidendi: 1. Section 195(1)(a) of the Code of Criminal Procedure, 1973 provides that no Court shall take cognizance of any offence punishable under Section 182 IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. 2. In the instant case, the petitioner had lodged the relevant report with the police which had launched the prosecution. Therefore, the Magistrate had no locus standi to order filing of complaint in respect of the offence under Section 182 IPC. 3. Section 340 of the Code of Criminal Procedure, 1973 provides that where in the opinion of the Court it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195 of the Code which appears to have been committed in or in relation to a proceeding in that Court, such Court may record a finding to that effect and make a complaint thereof in writing to a Magistrate of the First Class having jurisdiction. 4. In the instant case, the Magistrate had not exercised judicial discretion in the light of all the relevant circumstances and had not considered the question of expediency as required under Section 340 of the Code.
Final Decision: The revision petition was allowed and the impugned order regarding filing criminal complaint against the petitioner was set aside.
( 1 ) THIS revision petition is directed against the order dt. 12-3-1982 passed by the Judicial Magistrate First Class, Jawad, district Mandsaur regarding prosecution of the petitioner in respect of offences under Ss. 182 and 211 of the Indian Penal Code.
( 2 ) THE circumstances giving rise to this petition are these; on the report dt. 18-2-76 lodged by the petitioner Krishnagopal, the non-applicant No. 1 was prosecuted by the police in the Court of Judicial Magistrate First Class, Jawad in respect of offences under Ss. 406 and 420 of the I. P. C. Ultimately charge only under S. 420 of the I. P. C. was framed.
( 3 ) BY his judgment dt. 12-3-82 the learned Magistrate acquitted the non-applicant Purshottam of the offence under S. 420 of the I. P. C. and in para 12 thereof passed the impugned order.
( 4 ) ACCORDING to the petitioner's case the non-applicant No. 1 had on 20-1-76 purchased groundnut oil worth Rs. 34, 534. 38 paise from the former and cheated him stating that the price shall be paid in cash against delivery and that in the event of non-payment the oil shall be retained in trust. Only part payment towards the price was made but the oil was sold in breach of the trust.
( 5 ) IT may be pointed out that S. 341 of the Criminal Procedure Code, 1973 (for short 'the Code') contemplates appeal when a complaint has already been filed. In the instant case there is only an order for prosecution and the point for consideration is whether the petition deserves to be allowed.
( 6 ) FROM the earlier deposition of the petitioner as P. W. 1 it is gathered that prior to the written report dt. 18-2-76 lodged by him with the police, he had already received Rs. 34,534. 00 from the vendee. It is in this context that the learned Magistrate observed the report in question was false.
( 7 ) IT is pertinent to point out that subsequent to the transaction in question the petitioner in his letter dt. 20-1-76 (Ex. D1) to the firm of the non-applicant No. 1 had stated that the balance outstanding after deducting Rs. 10,000/- being the amount of draft, stands at Rs. 41,520. 53p. In para 21 after perusal of his account books the petitioner had stated that on the date of the transaction in question a sum of Rs. 16,816. 50p. was outstanding on account of previous transactions. We also have on the record of the Criminal Case No. 307/76 an application by the non-applicant No. 1 to the effect that between 1972 and 1976 oil worth Rs. 65,000. 00 had been purchased and only, a sum of Rs. 49,000. 00 had been paid to the petitioner.
( 8 ) IT may further be pointed out that the transaction in question was through Parasmal (P. W. 5 ). He has deposed that Ex. P-2 is the relevant Sauda Chitthi and it was agreed that the entire amount of the price had to be paid against delivery. Towards the end of para 2 of his deposition his version is that the non-applicant No. 1 had agreed that in the event of non-payment of price the oil shall be retained in trust.
( 9 ) LEARNED counsel for the petitioner relying on the decisions in State of Punjab v. Brijlal, AIR 1969 SC 355, Santokh Singh's case, AIR 1973 SC 2190 and Chajoo's case, AIR 1971 SC 1367 urged that the order for prosecution of the petitioner is wholly unwarranted.
( 10 ) FIRST as to the offence under S. 182 of the I. P. C. S. 195 (a) of the Code provides that no Court shall take cognizance of any offence punishable under S. 182 I. P. C. (giving false information to a public servant in order to cause him to use his lawful power to the injury or annoyance of any person) except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
( 11 ) IN the instant case the petitioner had lodged the relevant report with the police which had launched the prosecution. As pointed out in the decision in Brijlal's case (1969 Cri LJ 645) (SC) (supra) in terms of S. 195 (1) (a) of the Code cognizance of the offence under S. 182 of the
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