THE HONOURABLE SRI JUSTICE K.SURENDER
WRIT PETITION NO.42503 OF 2022
ORDER:
The writ petition is filed under Article 226 of Constitution of India by the petitioner questioning the order dated 10.07.2017 passed in S.R.No.5209 of 2015 in Crime No.254 of 2014 by the learned IV Additional Chief Metropolitan Magistrate at Hyderabad dismissing the protest application filed by the petitioner.
2. Heard learned counsel for the petitioner and learned Government Pleader for Home appearing for respondents No.1 and 2. Perused the material on record.
3. The criminal case was filed against the respondents/Accused alleging that they have cheated the petitioner herein in a sale transaction. During the course of investigation, it was found that Rs.90,00,000/- was agreed for sale of property and entire Rs.90,00,000/- was paid. However, according to the learned Magistrate after the period of nine months, the complainant was claiming that only 2 Rs.40,00,000/- was paid and Rs.50,00,000/- was due. The said claim made by the complainant without any proof was not accepted. However, there was proof that the entire amount of Rs.90,00,000/- was paid and on that basis the learned Magistrate thought it fit to dismiss the protest application filed by the petitioner herein and accepted the final report.
4. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court passed by the three Judge Bench in India Carat Private Limited Vs State of Karnataka and another1 wherein it is observed that the Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case. In the present application, the learned Magistrate had gone through the evidence produced by the respondents/accused and also the contentions of the petitioner herein and by a detailed order found that the ingredients under Section 420 and 406 are not made out.
1 (1989) 2 SCC 132 3
5. The other judgment relied upon by the learned counsel for the petitioner is in H.S. Bains Director Small Saving - cum - Deputy Secretary Vs. The State (Union Territory of Chandigarh)2. In the said judgment also, the Hon'ble Supreme Court was dealing with the powers of the Magistrate in directing the issuance of process. The procedure contemplated in both the decisions is not in dispute. However, on the said fact there is no case for the petitioner.
6. Learned counsel for the petitioner would submit that there is livelihood of settlement if the notices are issued to the respondents/accused. The present writ petition is filed with a delay questioning the orders dated 10.07.2017 and there are no reasons assigned for the delay of six years in filing the said writ petition. I do not find any infirmity of the learned Magistrate refusing the protest petition and accepting the final report of the police after the accused have produced relevant documentary evidence to show that entire amount covered by the same transaction must be paid. There are no merits in the writ petition and liable to be dismissed. 2 Criminal Appeal No.687 of 1980 4
7. Accordingly, the Writ Petition is dismissed.
Miscellaneous applications pending, if any, shall stand closed.
________________ K.SURENDER, J Date: 20.03.2023 tmk 5 THE HONOURABLE SRI JUSTICE K.SURENDER WRIT PETITION NO.42503 OF 2022 Date: 20.03.2023 tmk