ORDER

The Criminal Revision Case is directed against the order passed in Cr.M.P.No.6852 of 2013 in R.C.S.No.156 of 2013, dated 13.07.2016 on the file of the Court of Judicial Magistrate No.II, Dindigul.

2.The revision petitioner, who is the defacto complainant, lodged a complaint against the second respondent herein with the first respondent police and on the basis of the said complaint, FIR came to be registered in Crime No. 48 of 2010 on the file of the first respondent police under Section 406 and 420 IPC.

3.It is not in dispute that the first respondent, after completion of investigation, has filed the referred charge sheet as 'mistake of fact' before the Court of Judicial Magistrate No.II, Dindigul, that on receipt of the notice, the revision petitioner has raised objections to the negative report filed by the police, by filing a protest petition and the said petition was taken on file in Cr.M.P.No.6852 of 2013 and that the learned Magistrate has passed the impugned order on 13.07.2016, closing the protest petition and consequently, closing the FIR in Crime No.48 of 2010 as 'mistake of fact'. Aggrieved by the said order, the defacto complainant has come forward with the present revision.

4.Whether the impugned order passed in Cr.M.P.No.6852 of 2013 in RCS.No.156 of 2013, dated 13.07.2016 on the file of the Court of Judicial Magistrate No.II, Dindigul, is liable to be set aside ? is the point for consideration.

5.Admittedly, the second respondent is the own sister of the revision petitioner. The revision petitioner has lodged a complaint alleging that as the Managing Director of Soundara Mills Private Limited, he entered into a slumsale agreement with the second respondent, who was the then Vice President of M/s.Soundaraja Sasha Industries Private Limited, for the purchase of the said industry for a sum of Rs.14 Crores, that the sale consideration was paid to the second respondent through bank transactions, that the petitioner was already having 53% of shares in the said industry, that to the petitioner's shock and surprise, the second respondent had clandestinely taken away a sum of Rs.10,59,08,041.02/- and misappropriated the same by misusing the relationship and that thereby, she committed breach of trust.

6.It is the specific case of the revision petitioner that the second respondent has filed a petition in Crl.O.P.No.12947 of 2010, for quashing the FIR in Crime No.48 of 2010 before this Court and the same was ordered to be dismissed on 04.03.2011, that the petitioner has appeared before the respondent police many times and submitted various documents, that the first respondent has not conducted the investigation properly and conducted one side investigation, that the first respondent has thereafter, filed the referred charge sheet as 'mistake of fact' and that therefore, the petitioner, on receipt of notice for filing the negative report, was forced to file the protest petition, now under challenge.

7.The learned Judicial Magistrate, by recording the absence of the defacto complainant and non representation and by observing that there was no progress on the side of the defacto complainant, closed the protest petition and thereby recorded the closure of the FIR as 'mistake of fact'. The learned Magistrate has further observed that the defacto complainant is permitted to file a separate private complaint, if it is necessary.

8.The learned counsel for the revision petitioner would contend that the learned Magistrate has committed an error in dismissing the protest petition for non prosecution and for the non appearance of counsel for one hearing, that it is the duty of the trial Court to issue summons to the petitioner in the event of his counsel failed to appear before the Court, that the learned Magistrate ought to have treated the protest petition as a private complaint, as contemplated under Section 190 r/w 200 Cr.P.C and ought to have proceeded in accordance with law, that the trial Court ought to have ordered further inv