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MADHYA PRADESH HIGH COURT
N.K. Gupta, J.
Adarsh Singh Kushwaha v. State of M.P. and another
Miscellaneous Criminal Cases No.11083 and 11084 of 2015 (Gwalior) : against the order dated 15.9.2014, passed by JMFC, Gwalior;
Decided on 18.4.2016.
Held : The Magisterial Court while passing order under section 156(3) of the CrPC did not consider the various flaws visible in the complaint. Firstly that the applicant had already filed a criminal complaint under section 138 of the Negotiable Instrument Act and, therefore, unless that Court has found that the cheques were forged, such counter case could not be lodged .... It was for the Magistrate to satisfy himself that prima facie any offence was made out against the applicant or not and, thereafter, he would have directed to register the case under section 156(3) of the CrPC but it appears that on the basis of complaint sent by the respondent to the SHO and SP concerned, his application was allowed without passing any speaking order and SHO, Maharajpura was directed to register a case. Hence, the Magistrate did not apply its mind while accepting the application under section 156(3) of the CrPC and, therefore, it was contrary to the provisions of law. (2015)6 SCC 287 followed. 2013(2) MPHT 521 relied on. 2010 CrLR (SC) 318, 2014(4) CCSC 2049 (SC), 2011(1) CCSC 171, 2002 CrLR (SC) 221 and AIR 2008 SC 907 referred to.
naM izfØ;k lafgrk] 1973 && /kkjk 482] 200] 202] 156¼3½ rFkk 82 && naM lafgrk] 1860 && /kkjk 420] 467 rFkk 468 && ijØkE; fy[kr vf/kfu;e] 1881 && /kkjk 138 && izFke bfÙkyk fjiksVZ vfHk[kafMr djus rFkk lafgrk] 1973 dh /kkjk 82 ds v/khu dk;Zokgh jksdus gsrq ;kfpdk && mica/k ds v/khu ifjokn igys&gh izLrqr && lafgrk] 1973 dh /kkjk 156¼3½ ds v/khu vkosnu Hkh izLrqr && ifjokn ds vk/kkj ij izFke bfÙkyk fjiksVZ jftLVªhd`r djus ds fy, fcuk euksfu;ksx fd, funs'k tkjh && ;g fof/k ds mica/kksa ds izfrdwy gS && tc rd ;g ugha ik;k tkrk fd pSd dwVjfpr Fks && ,slk izfrekeyk nkf[ky ugha gksuk pkfg, && izR;FkhZ ls vius fujad pSd ds ckjs esa pkj o"kZ ls ykijokg jgus dh izR;k'kk ugha && iqfyl }kjk dh xbZ tk¡p dk dksbZ vFkZ ugha && eftLVªsV U;k;ky; naM izfØ;k lafgrk dh /kkjk 82 ds v/khu izLrkfor vfHk;qDr ds fo#} dk;Zokgh djus gsrq vuqKkr ugha dj ldrk && ;kfpdk eatwj && izFke oxZ U;kf;d eftLVªsV }kjk ikfjr vk{ksfir vkns'k vikLr && ekeyk vfHkdFkuksa ds leFkZu esa 'kiFk&i= e¡xkus gsrq rFkk rRi'pkr~ ldkj.k vkns'k ikfjr djus gsrq izfrizsf"krA vfHkfu/kkZfjr % eftLVªsV U;k;ky; us naM izfØ;k lafgrk dh /kkjk 156¼3½ ds v/khu vkns'k ikfjr djus ds nkSjku ifjokn esa izdV fofHkUu nks"kksa ij fopkj ugha fd;kA izFker% fd vkosnd igys&gh ijØkE; fy[kr vf/kfu;e dh /kkjk 138 ds v/khu nkafMd ifjokn izLrqr dj pqdk Fkk rFkk blfy, tc rd fd og U;k;ky; ugha ikrk gS fd pSd dwVjfpr Fks ,slk izfrekeyk nkf[ky ugha gks ldrk FkkA ---- ;g eftLVªsV ij Fkk fd og Lo;a dk lek/kku djs fd izFken`"V~;k dksbZ vijk/k vkosnd ds fo#} curk Fkk ;k ugha] rRi'pkr~ og naM izfØ;k lafgrk dh /kkjk 156¼3½ ds v/khu ekeyk jftLVj djus ds fy, funs'k nsrk] ijarq ,slk izdV gksrk gS fd izR;FkhZ }kjk lacaf/kr Fkkuk izHkkjh rFkk iqfyl v/kh{kd dks Hkstk x;k ifjokn ds vk/kkj ij mldk vkosnu fcuk ldkj.k vkns'k ikfjr fd,] eatwj fd;k x;k rFkk Fkkuk izHkkjh] egkjktiqjk dks ekeyk jftLVj djus ds fy, funsf'kr fd;k x;kA blfy, eftLVªsV us naM izfØ;k lafgrk dh /kkjk 156¼3½ ds v/khu vkosnu Lohdkj djrs le; viuk euksfu;ksx ugha fd;kA ¼2015½ 6 ,l lh lh 287 vuqlfjrA 2013 ¼2½ ,e ih ,p Vh 521 voyafcrA 2010 lhvkj ,y vkj ¼,l lh½ 318] 2014 ¼4½ lh lh ,l lh 2049 ¼,l lh½] 2011 ¼1½ lh lh ,l lh 171] 2002 lhvkj ,y vkj ¼,l lh½ 221 rFkk , vkb vkj 2008 ,l lh 907 fufnZ"VA
1. Both the matters are interconnected and, therefore, decided by the present common order.
2. Miscellaneous Criminal Case No. 11083/2015 is filed by the applicant against the order dated 15.9.2014 and consequentially to get the registration of FIR at Crime No. 382/2014 for offence under sections 420, 467 and 468 of IPC to be quashed. Thereafter a petition under section 482 of the CrPC (Miscellaneous Criminal Case No.11084/2015) was filed to stop the proceedings against the applicant under section 82 of the CrPC.
3. Facts of the case, in short, are that the complainant/respondent No.2 in Miscellaneous Criminal Case No.11083/2015, took a loan for purchase of the house in the year 2011-12 for a sum of Rs.37,71,100/- and on demand of payment of loan, the complainant had issued a cheque bearing No.534647 dated 25.5.2014 of Rs.9,21,100/- of Bank of Baroda, Sarafa Bazar, Lashkar and another cheque bearing No.534648 dated 1.6.2014 of Rs.28,50,000/- of the same bank was issued. Those cheques were dishonored. The complainant has filed an application under section 156(3) of the CrPC that from the very beginning, he was prosecuting his office in the premises of the applicant and two blank cheques were stolen by the applicant. There was no loan transaction between the parties and, hence, there was no question of repayment. The cheques were forged after stealing them and placed before the Punjab National Bank for their payment. Since the complainant did not issue such cheques, he had no such amount available in his account and, therefore, both the cheques were dishonored and a false complaint under section 138 of the Negotiable Instruments Act was filed before the competent Magistrate by the applicant. Thereafter the complainant has filed the application under section 156(3) of the CrPC that a forgery was committed by the applicant. The JMFC, Gwalior vide order dated 15.9.2014 accepted the application and directed the SHO, Maharajpura to register the FIR and investigate the matter and thereafter final report be placed before the competent Court. During the investigation, it was found that the applicant was absconding and, therefore, proceedings under section 82 of the CrPC were initiated against the applicant.
4. I have heard the learned counsel for the parties at length.
5. Learned counsel for the applicant has placed his reliance upon the judgment passed by the apex Court in case of Priyanka Shrivastava and another v. State of Uttar Pradesh and others [(2015)6 SCC 287], and the order passed by the single Bench of this Court in case of Ramyash Tiwari v. State of M.P. [2013(2) MPHT 521], to show that the Magisterial Court while passing the order under section 156(3) of the CrPC did not apply his mind and without any appropriate evidence, order under section 156(3) of the CrPC was passed. It is contravention to the guideline given by the single Bench of this Court in case of Ramyash Tiwari (supra).
6. On the other hand, the learned counsel for the respondent Aditya Singh Kushwaha has placed his reliance upon the judgments passed by the apex Court in case of Rameshbhai Pandurao Hedau v. State of Gujarat [2010 CrLR (SC) 318], Madhao and another v. State of Maharashtra and another [2014(4) CCSC 2049 (SC)], Srinivas Gundluri and others v. S.E.P.C.O. Electric Power Construction Corpn. and others [2011(1) CCSC 171 (SC)], and Suresh Chand Jain v. State of M.P. and another [2002 CrLR (SC) 221], in which it is held that if complaint under section 200 of the CrPC is filed before the Magistrate and if he proceeds under sections 200 and 202 of the CrPC then thereafter no direction can be given under section 156(3) of the CrPC. For issuance of direction under section 156(3) of the CrPC, it is for the Magistrate to issue such direction before taking the cognizance of the case.
7. In case of Sakiri Vasu v. State of U.P. and others [AIR 2008 SC 907], it is held that if police does not write down the FIR in the case then the complainant is free to send a com
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