Anoop Gulati vs State Of U.P. And Others
2012 Latest Caselaw 4584 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										Reserved.
 

 
Case :- CRIMINAL REVISION No. - 2738 of 2009
 
Petitioner :- Anoop Gulati
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Arun K. Singh-I
 
Respondent Counsel :- Govt. Advocate,G.S.Chaturvedi,Vivek Prakash Mishra.
 

 
Hon'ble Mrs. Jayashree Tiwari,J.

Heard learned counsel for the revisionist, learned A.G.A. as well as learned counsel for the respondents and perused the record.

The present criminal revision has been filed for quashing the order passed by the learned Magistrate in Complaint Case No. 5657/2008, whereby learned Magistrate after taking cognizance of the complaint and after recording the statements under Sections 200 and 202 Cr.P.C. and also perusing the material evidence on record had dismissed the compliant under Section 203 Cr.P.C. holding that no prima facie, case is made out.

The main contention of the learned counsel for the revisionist is that even if, a matter is liable to be determined by the Competent Court of civil jurisdiction, even then the criminal proceedings against the said present revision can also be drawn and thus he submitted that learned Magistrate in dismissing the complaint has acted erroneously.

In this respect, counter affidavit has been filed by the learned counsel for the respondents and against which rejoinder affidavit have been exchanged.

Learned counsel for the revisionist referred to the decisions of Apex Court rendered in various prominent cases which are as follows : M.S. Sheriff v. State of Madras and others, AIR 1954 SC 307, wherein their Lordships in paragraphs 15 and 16 as under:

"15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decision in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of the Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interest demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S.476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

In yet another decision rendered in Khurram Siddiqui v. Km. State of U.P., 2010 (9)ADJ 599, this court in paragraphs 4,8 and 9 has laid down as under:

"4. Learned Chief Judicial Magistrate was of the view that the dispute is of civil nature and the question whether or not the sale deed is a forged document, can only be decided by the Civil Court. It was also held that a litigation is also pending in the Revenue Court. Learned Chief Judicial Magistrate relying on Indian Oil Corporation v. NEPC India Ltd and others, (2006)VI SCC 736, formed the opinion that criminal proceeding in regard to a civil dispute should not be permitted to proceed.

8.It is thus well settled that a civil as well as criminal proceeding in regard to same act may be launched and continued simultaneously. If certain acts constitute an offence, the criminal proceeding cannot be held up or kept in abeyance till the finalization of the civil proceeding. Therefore the views of the Courts belongs were not correct.

9.What was required from the learned Magistrate, was to see whether the facts stated in the application moved under Section 156(3) constituted commission of any cognizable offence or not. In other words, it was the duty of the Magistrate to see whether or not the facts put forth before him had disclosed that the impugned sale deed was a forged document fabricated by the respondent No.2 for grabbing the waqf property. If it was so, what offence was made out from the facts disclosed. These aspects of the matter have not been given any consideration by the learned Magistrate as well as by the learned Additional Sessions Judge while passing the impugned orders."

In another judgement pronounced in the case of Mahesh Choudhary v. State of Rajasthan and Another, 2009 AIR SCW 2449, the Apex Court in paragraph 14 has held as under:

"It is also well settled that save and except very exceptional circumstances, the court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the Complaint Petition may disclose a civil dispute, the same may by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or Complaint Petition fulfill the ingredients of the offences alleged against the accused.

In yet another pronouncement made in the case of Tapas Adhikari and another v. State of U.P. and Another, 2009 (5) ADJ 649, this Apex Court in paragraph 8 has held as under:

"8........So far as the pendency of civil suit is concerned, the proceedings in civil or revenue Courts are filed for the purpose of obtaining different reliefs. The criminal proceedings may not be quashed in case such proceedings are barred by law or the fabrics of the proceedings is parallel of the civil in nature for constituting any offence. Its remedy is available in civil or revenue Courts but on the basis of allegation, prima facie, any criminal offence is made out, the same may not be quashed only on the ground that civil proceedings are pending. It is well settled proposition of law that civil and criminal proceedings may run parallel, therefore, on account of pendency of the civil suit, the proceedings of the present case cannot be quashed...."

In another decision rendered in the case of M. Krishnan v. Vijay Singh and another, AIR 2001 SC 3014, the Apex Court in paragraphs 5 and 11 has propounded as under:

"5.Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil Court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yard-sticks. The onus of proving the allegations beyond reasonable doubt, in criminal cases, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of. The High Court was not, in any way, justified to observe:

"In my view, unless and until the civil Court decides the question whether the documents are genuine or forged, no criminal action can be initiated against the petitioners and in view of the same, the present criminal proceedings and taking cognizance and issue of process are clearly erroneous."

11. The impugned judgment being contrary to the settled position of law is thus not sustainable. The appeal is allowed and the impugned judgment of the High Court is set aside by upholding the order of the Trial Magistrate dated 3-8-1998. The Trial Magistrate shall now proceed in the matter in accordance with law."

In the case of Kamladevi Agarwal v. State of West Bengal and others, AIR 2001 SC 3846(1) the Hon'ble Supreme Court in paragraphs 15, 16 and 17 has held as under:

"15. We have already noticed that the nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of "beyond reasonable doubt". A Constitution Bench of this Court, dealing with the similar circumstances, in M.S. Sheriff v. State of Madras, AIR 1954 SC 397 held that where civil and criminal cases are pending, precedence shall be given to criminal proceedings. Detailing the reasons for the conclusions, the Court held:

"As between the civil and criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S.476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

16. In the present case we have noticed that before issuance of the process, the Trial Magistrate had recorded the statement of the witnesses for the complainant, perused the record including the opinion of the expert and his deposition and prima facie found that the respondents were guilty for the offence for which the process was issued against them. The High Court rightly did not refer to any of those circumstances but quashed the proceedings only on the ground:

"Consideration is and should be whether any criminal proceeding instituted before a court subordinate to this court should be allowed to continue when the very foundation of the criminal case, namely, forgery of document is under scrutiny by this court in a civil proceeding instituted by same person, i.e. the complainant in the criminal case. In my considered view it would not be proper to allow the criminal proceeding to continue when the validity of the document (deed of dissolution is being tested in a civil proceeding before the court. Judicial propriety demands that the course adopted by the Hon'ble Supreme Court in this case of Manju Gupta (supra) and Sardool Singh (supra) should be followed. If such course of action is adopted by this court, that would be in consonance with the expression used in Section 482 of the Code of of Criminal Procedure- "or otherwise to secure the ends of justice." In both the cases referred to above civil suits were pending, where the validity and genuineness of a document was challenged. It was held by the Hon'ble Supreme Court that when the question regarding validity of a document is subjudice in the civil courts, criminal prosecution, on the allegation of the document being forged, cannot be instituted."

17. In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different Court even though higher in status and authority, cannot be made a basis for quashing of the proceedings."

While examining the scope of Section 203 Cr.P.C. the Hon'ble Supreme Court in the case of Debendra Nath Battacharya v. The State of West Bengal and another, AIR 1972 SC 1607 in paragraphs 7 and 8 has held as under :

"7. It has to be remembered that an order of dismissal of a complaint under Section 203, Criminal Procedure Code has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceedings further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need for proceeding further in order to discover the truth after a full and proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show that essential ingredients of the offence alleged are absent or that the dispute is only a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further the complaint could be properly dismissed under Section 203, Criminal Procedure Code.

8. What the Magistrate had to determine at the stage of issue of process was not the correctness of the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what was stated could be true unless the prosecution allegations were so fantastic that they could not reasonably be held to be true."

In S.N. Palanitkar v. State of Bihar and another, AIR 2001 SC 12960 while examining the scope of section 203 of Code of Criminal Procedure Code, the Hon'ble Apex Court in paragraphs 15,16 and 17 has held as under :

"15. In case of a complaint under Section 200, Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and the witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground' used under Section 202 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.

16. This Court in Nirmaljit Singh Hoon v. The State of West Bengal and others, (1993)(3)SCC 753), in para 22, referring to scheme of Sections 200-203 of Cr.P.C. has explained that "The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment not sufficient ground for proceeding, he may dismiss the complaint. In Chandra Deo Singh v. Prakash Chandra Bose (1964 (1)SCR 639) where dismissal of a complaint by the Magistrate at the stage of Section 2092 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (p.653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."

17. In Smt. Nagawwa v. Veeranna Shivalingappa Kongalgi (1976(3) SCC 736) this Court dealing with the scope of inquiry under Section 202 has stated that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the materials placed by the complainant before the Court (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (C) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is also indicated by way of illustration in which cases an order of the Magistrate issuing process can be quashed on such case being "where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused."

In Dr. Subramaniam Swamy v. Dr. Manmohan Singh, 2012 AIR SCW 1249 the Hon'ble Supreme Court in paragraph 26 has held as under:

"Before proceeding further, we would like to add that at the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint or the charge-sheet filed under Section 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process, it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter. If it is a charge-sheet filed under Section 173 Cr.P.C., the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that stage to embark upon and shift the evidence to come to the conclusion whether or not an offence has been made out."

While dealing with the power of attorney, the Hon'ble Supreme Court of India in Suraj Lamp and Industries v. State of Haryana, 2011 AIR SCW 6385, in paragraph 13 has held as under:

"13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."

In yet another decision rendered in M/s Indian Oil Corporation v. M/s NEPC India Ltd. And Others, AIR 2006 SC 2780 the Hon'ble Supreme Court in paragraph 10 has held as under:

"10. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors,. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [2000(2) SCC 6361, this Court observed:

"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice".

While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

In light of the aforesaid rulings as also in accordance with the provisions of law as enunciated in the Act, the submission of the learned counsel for the revisionist is to be taken into consideration.

The contention of the learned counsel for the revisionist that both civil and criminal proceedings can be simultaneously drawn with regard to the cause of action in which remedy lies in the civil side also, it is not appropriate to drop the criminal proceedings merely on the ground that civil court is the competent court to hear and decide the matter in controversy. Considering the matter from the angle raised from the side of the learned counsel for the revisionist, it is apparent that in the instant case, learned Magistrate on filing a complaint has proceeded according to the procedure prescribed under Sections 200 & 202 Cr.P.C.. So far as the contention that learned Magistrate has dropped the proceedings merely on the ground that the civil court is competent to grant remedy is not sustainable as is the argument advanced by the learned counsel for the revisionist.

In the instant case before us the complaint case no. 5657 of 2008 was proceeded by the learned Magistrate by taking cognizance of complaint case and proceeded to record the statement under Section 200 Cr.P.C. and thereafter the statement of his wife as P.W.1 was recorded under Section 202 Cr.P.C. After recording the statement under Section 202 Cr.P.C., learned Magistrate proceeded in accordance with the provisions of the procedure prescribed for trial on a complaint case. In this regard, it is expedient to go through the provisions as enunciated under Sections 203 and 204 Cr.P.C. which lays down as follows :-

Section 203 Cr.P.C.

" Dismissal of complaint- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing,"

Section 204 Cr.P.C.

"204.Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."

Thus, the procedure prescribed for proceedings with regard to the complaint case after recording the statement of the complainant and witnesses and the result of the inquiry or investigation (if any) under section 202 Cr.P.C., the Magistrate is of the opinion that there is no sufficient ground for proceeding exits and he was dismissed the complaint.

On the other hand, learned Magistrate opines that there is sufficient ground for proceedings, then he may proceed to issue summon in a summon case and warrant in a warrant case or summon accordingly.

In the instant case before us, it is not the case where the learned Magistrate has refused to take cognizance of a criminal case on the ground that the matter pertains mainly to the civil litigation. On filing a complaint, learned Magistrate has proceeded the inquiry as provided for trial on the complaint case and recorded the statement under Sections 200 and 202 Cr.P.C. and in furtherance of the proceedings, learned Magistrate has considered the relevant material evidence and has passed the order under Section 203 Cr.P.C. as he opines that there is no sufficient ground for proceedings in the case.

Learned Magistrate has passed a detailed and well reasoned order. Now for summoning an accused in a complaint case, it is important to see whether sufficient ground exists for summoning the accused applicant and whether a prima facie, case is made out or not.

Learned Magistrate has held that the perusal of the certified copies of the documents on record leads to the registered power of attorney which bears the signature of the complainant and which is not disputed by the comp. Learned Magistrate has further opined and given reasons that power of attorney is duly registered document signed by two witnesses before the Sub-Registrar Ghaziabad. It bears the photographs of the complainant as well as the opposite party no.1. Learned Magistrate has also opined that the offence under Sections 467, 468 and 471 I.P.C. deal with forgery of valuable security, will etc., forgery for purpose of cheating, using as genuine a forged document or electronic record is to be there.

Learned Magistrate has also opined in accordance with law that admissions of the complainant in the complaint as well as on oath statements before the Court, his signature are admitted on the registered power of attorney. Hence, the learned Magistrate came to the conclusion that forgery in the signature is not present and the offences under Sections 467, 468 and 471 I.P.C. are not made out. So far as the the offences under Sections 504 and 506 I.P.C. are concerned, the basic allegations making out a case there under are not contained either in the complaint or in the statements before the Court. As such, the averments regarding the offence under Sections 504 and 506 I.P.C. in the complaint case, learned Magistrate has opined that there is no prima facie, offence alleged are made out.

So far as Sections 420 and 415 I.P.C. are concerned, learned Magistrate has opined and given reasons that perusal of the complaint and the evidence lead in support of it show that the power of attorney is a registered document. Meaning thereby that both the parties must have appeared before the office of the Sub-Registrar, Ghaziabad. Further the power of attorney bears photographs of both the complainant and the opposite party at the bottom. It is impossible to believe the story of the complainant that he was deceived to sign the power of attorney which was registered and contained photographs of the complainant and opposite party. Hence, the question of intentionally deceiving the complaint does not arise.

Learned Magistrate has given cogent reasons and came to the conclusion that prima facie, offence alleged in the complaint are not made out from the inquiry made under Section 200 and 202 Cr.P.C. and has passed the order under Section 203 Cr.P.C. In addition, learned Magistrate has also quoted a ruling of Hon'ble Supreme Court (2006) 6 SCC 736 in case of Indian Oil Corporation v. NEPC India Ltd., wherein it has been held that :-

"Any effort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution, should be deprecated and discouraged".

Learned Magistrate has further observed that case is of a civil nature and the ingredients of Sections 420, 467, 468, 41, 504 and 506 I.P.C. are not made out and hence there does not exist a prima facie, case and no sufficient grounds for issuing process against the opposite parties and dismissed the complaint.

A perusal of the detailed order, learned Court has given reasons in a well discussed manner which clearly shows that the powers have been duly and legally exercised by the learned Magistrate, while proceedings on a criminal complaint. As such, the contention of the learned counsel for the revisionist reveals that criminal case can run side by side is not denied by the Court. The court has proceeded on the relevant inquiry under Sections 200 and 202 Cr.P.C. and on consideration of the entire material evidence on record and oral statement has given his well reasoned opinion for dismissing the complaint and no prima facie, offence appears to have been made out. More, so in addition, the Court has also stated a ruling of the Hon'ble Supreme Court and observed that it was a matter of civil litigation and no prima facie, offence as alleged are made out. It was not a case similarly where the Court has not taken cognizance and not proceeded mainly on the ground that the case is of a civil nature. The Court has proceeded on the criminal case in accordance with the provisions prescribed and after inquiry and consideration of the material evidence came to the opinion that no prima facie, offence is made out and hence, dismissed the complaint.

Thus, from the perusal of the record, it comes out that learned Magistrate has not out rightly rejected the complaint and has not taken cognizance of the same holding that adequate remedy can be granted by the civil court but he has duly taken cognizance of the matter on the complaint case and proceeded to record the statements under Section 200 & 202 Cr.P.C. and thereafter considering the material evidence on record, has passed the order under Section 203 Cr.P.C.

So far as the contention that order passed by the learned Magistrate is not proper because he has dropped the criminal proceedings on the ground that civil court is competent court is not made out.

Apparently, the order so passed is well reasoned and well discussed. At this stage, I do not find any illegality or irregularity in the order so passed which may vitiate the proceedings. In the circumstances, the revision, therefore, appears to have force in itself and is liable to be dismissed as such.

The criminal revision is accordingly, dismissed.

Date : 28.09.2012

Monika/Criminal Revision No. 2738/09