Ajay S/O Murlidharji Laddha vs State Of Maharashtra, Thr. Its ...
2022 Latest Caselaw 11225 Bom

J-cwp108.21.odt                                                   1/24


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR


            CRIMINAL WRIT PETITION No.108 OF 2021


Ajay s/o. Murlidharji Laddha,
Aged about 57 years,
Occupation : Private,
R/o. Sugan Tower, Flat No.A2,
Shankar Nagar Road, Jayram Nagar,
Rukhmini Nagar, Amravati,
(Maharashtra) 444 606.                        :   PETITIONER

              ...VERSUS...

1.   State of Maharashtra,
     Through its Police Station Officer,
     Rajapeth Police Station, Amravati.

2.   Smt. Bharti w/o. Naresh Aadwani,
     Aged 27 years, Occupation : Housewife,
     R/o. Shankar Nagar, Amravati,
     (Maharashtra).                         :      RESPONDENTS

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri A.S. Mardikar, Senior Advocate with Shri Rishab Khemuka,
Advocate for Petitioner.
Smt. S.S. Jachak, Additional Public Prosecutor for Respondent No.1.
Shri Sunil Manohar, Senior Advocate with Shri Jatin Kumar, Advocate
for Respondent No.2.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

CORAM             :   A.S.Chandurkar & Urmila Joshi-Phalke, JJ.

Arguments heard on              :   06.10.2022.
Judgment delivered on           :   21.10.2022.

ORAL JUDGMENT : (Per : Urmila Joshi-Phalke, J.) J-cwp108.21.odt 2/24

1. The petitioner by invoking jurisdiction under Articles 226

and 227 of the Constitution of India as well as Section 482 of the

Code of Criminal Procedure seeks quashment of the order passed by

the learned Additional Sessions Judge, Amravati directing the Police

Station Officer/Authorized Officer, Rajapeth Police Station to submit

report under Section 156(3) of the Criminal Procedure Code, 1973

after proper investigation.

2. The petitioner and the respondent No.2 both are

permanent residents of Amravati and acquainted with each other. As

per the contention of the petitioner in the year 2017 his mother was

suffering from heart disease, therefore, he was in need of financial

assistance. The petitioner requested respondent No.2 for hand-loan of

Rs.10,00,000/- for the purpose of medical treatment of his mother.

Accordingly, as per request respondent No.2 gave hand-loan of

Rs.10,00,000/- to the petitioner and obtained written note i.e.

Jama-Chitthi on the letter-pad of the petitioner. The petitioner had

issued cheque bearing No.851719 of IndusInd Bank to the respondent

No.2 by way of security. As per the contention of the petitioner the

alleged transaction had taken place in the presence of Shri Virbhan

Zambani. It is further contention of the petitioner that he could not

repay the amount due to business problems as agreed by him. The J-cwp108.21.odt 3/24

respondent No.2 deposited the said cheque for clearance but it was

returned with endorsement "Funds Insufficient" on 13.8.2020. As the

cheque issued by the petitioner was not encashed, respondent No.2

issued notice to the petitioner on 17.8.2020. As per the petitioner,

respondent No.2 had not mentioned real transaction in the said

notice. The respondent No.2 again issued a notice dated 4.9.2020

asking the petitioner to refund amount within three days otherwise

she would take legal action against him under the provisions of the

Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act, 1999 (hereinafter referred to as, "the MPID Act,

1999". Thereafter respondent No.2 approached the Police for taking

action against the petitioner but the Police did not register the

offence, therefore, petitioner preferred application seeking relief

under Section 156(3) of the Cr.P.C. before the learned Additional

Sessions Judge, Amravati bearing Misc. Criminal Application

No.95/2020. The respondent No.2 had also filed Misc. Criminal

Application No.132/2020 for seeking direction to the Police to register

offence against petitioner. Said application was allowed by the

learned Additional Sessions Judge by directing the Police Station

Officer to conduct the investigation and submit the report.

3. Being aggrieved with the said order present writ petition is J-cwp108.21.odt 4/24

filed by the petitioner on the ground that the learned Additional

Sessions Judge had not considered that it is the transaction of

hand-loan and at the most case of the petitioner is covered under

Section 138 of the Negotiable Instruments Act, 1881. The order

passed by the Additional Sessions Judge is illegal and liable to be set

aside.

4. In response to the notice the respondent No.2 submitted

that the petition is without substance, malicious and liable to be

dismissed. As per the contention of the respondent No.2 the

petitioner had represented to the people of Amravati and its adjacent

district that he is an accomplished land developer and has several

upcoming layouts project in Amravati district. He further represented

that he would be converting huge portion of the land into layouts

which are adjacent to upcoming road development project to attract

several people into opening deposit account. He promised that money

deposited would be used by him for development project and that the

deposit scheme would yield higher rate of returns and thereby the

petitioner willfully made a deposit scheme lucrative. The petitioner

had also promised a monthly return of 1.8% which was payable after

every four months to the concerned depositors. On the basis of

assurances and promises rendered by the petitioner, the respondent J-cwp108.21.odt 5/24

No.2 deposited the amount of Rs.10,00,000/- with the petitioner

through cheque No.000011 drawn on HDFC Bank dated 7.9.2017.

The said cheque was sent to the petitioner through Shri Virbhan

Totaram Zambani. The cheque was duly encashed by the petitioner

and issued a Jama-Chitthi or deposit note to the respondent No.2.

The petitioner as per the assurance had not paid any amount to the

respondent No.2. He only remitted sum of Rs.1,98,000/- in discharge

of his obligation against the deposit note. The petitioner in

contravention of the deposit note started making defaults in

repayment to the respondent. Therefore, the respondent presented

the cheque bearing No.851719 on 10.8.2020 for encashment.

However, said cheque was dishonoured by the petitioner Bank on

13.8.2020 and returned with endorsement "Funds Insufficient".

Therefore, the respondent No.2 had issued the notice. After receipt of

the notice also petitioner had not repaid the amount. Therefore, she

approached the Police on 7.9.2020 and filed the complaint against the

petitioner as the Police did not take action he approached to the

Special Court, Additional Sessions Judge, Amravati for seeking

direction to register the F.I.R. against the petitioner under Section

156(3) of the CrPC. He supported the order passed by the learned

Additional Sessions Judge, Amravati.

J-cwp108.21.odt 6/24

5. By an order dated 19.1.2021 the Special Judge found that

from the averments made in the application as well as perusal of the

deposit note dated 7.9.2017 that the petitioner had accepted deposit

from the applicant as contemplated under Section 2(c) of the MPID

Act, 1999. Further, from the averments made in the application and

the endorsement made on the deposit note dated 7.9.2017 (which is

encircled in red and marked 'X' for identification), it appeared that the

petitioner had assured the respondent No.2 that she would get

quarterly returns at 1.80% on the amount deposited. In fact, perusal

of the statement of the account of the respondent No.2 showed that

during the period 30.1.2018 to 13.11.2019 she has received regular

interest on the amount given by her to the petitioner and thereafter

the petitioner stopped making payment of the quarterly returns.

Thus, prima facie it appears that the respondent No.2 was cheated. It

is further observed by the Special Court that the question was whether

the non-applicant No.1 is running a "Financial Establishment" within

the meaning of Section 2(d) of the MPID Act, 1999. In this regard, it

may be stated that the respondent No.2 had not given the names of

other persons, who had deposited amount with the petitioner. It

prima facie appeared that the petitioner was accepting money under

some scheme or arrangement and that he defaulted in making J-cwp108.21.odt 7/24

payment of the returns to the respondent No.2 and for that purpose

investigation would be necessary.

6. The order of the Special Court was questioned by the

petitioner under Section 482 of the CrPC. We have heard learned

Senior Advocate Shri A.S. Mardikar with Shri Rishab Khemuka,

Advocate for the petitioner and Senior Advocate Shri Sunil Manohar

with Shri Jatin Kumar for the respondent No.2 and learned Additional

Public Prosecutor Smt. S.S. Jachak for the respondent No.1.

7. Before entering into the merits of the petition we find it

appropriate to reiterate the law laid down by the Constitution Bench

of the Hon'ble Apex Court in the case of Lalita Kumari vs. Government

of Uttar Pradesh and others, reported in (2014) 2 SCC 1, wherein

Hon'ble Apex Court observed that although Section 154 CrPC

postulates the mandatory registration of FIRs on receipt of

information as to all cognizable offences, yet, there may be instances

where preliminary inquiry may be required owing to the change in

genesis and novelty of crimes with the passage of time. One such

instance is in the case of allegations relating to medical negligence on

the part of doctors. It will be unfair and inequitable to prosecute a

medical professional only on the basis of the allegations in the

complaint. In the context of offences relating to corruption, the J-cwp108.21.odt 8/24

Supreme Court has also expressed the need for a preliminary inquiry

before proceeding against public servants. Thus, the law can be

summarized as follows :

i) Registration of FIR is mandatory under Section 154 CrPC, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering a FIR if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/ laches in initiating criminal prosecution, for example, J-cwp108.21.odt 9/24

over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected therein.

8. The law regarding the provisions of the 156(3) is discussed

by the Hon'ble Apex Court in XYZ vs. State of Madhya Pradesh and

others, decision in Criminal Appeal No.1184/2022, 2022 Live Law SC

676 and held that a Division Bench of this Court in the case of Sakiri

Vasu vs. State of U.P., reported in (2008)2 SCC 409, expounded upon

the Magistrate's powers under Section 156(3) of the CrPC. The

Hon'ble Apex Court noted :

"11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory J-cwp108.21.odt 10/24

result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC.

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not J-cwp108.21.odt 11/24

being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?"

9. It is further held in the judgment referred supra that what

is necessary is only that the information given to the Police must

disclose a commission of cognizable offence. In such a situation,

registration of an FIR is mandatory. However, if no cognizable

offence is made out in the information given, then the FIR need not be

registered immediately and perhaps the police can conduct a sort of

preliminary verification or inquiry for the limited purpose of

ascertaining as to whether a cognizable offence has been committed.

But, if the information given clearly mentions the commission of a

cognizable offence, there is no other option but to register an FIR J-cwp108.21.odt 12/24

forthwith. Other considerations are not relevant at the stage of

registration of FIR, such as, whether the information is falsely given,

whether the information is genuine, whether the information is

credible, etc. These are the issues that have to be verified during the

investigation of the FIR. At the stage of registration of FIR, what is to

be seen is merely whether the information given ex facie discloses the

commission of a cognizable offence. If, after investigation, the

information given is found to be false, there is always an option to

prosecute the complainant for filing a false FIR.

10. In the light of the abovesaid well settled legal position the

facts of the present case are to be ascertained. The respondent No.2

had filed written complaint before the Police alleging that the present

petitioner represented to the general public and a broker that he is

developer of layouts in the Amravati district. The petitioner assured

the general public that if any amount is deposited with him he would

use the said amount for developing layouts and ensure that the

invester would get return at 1.50% to 1.80% per month on the

amount deposited. It is further alleged by the respondent No.2 that

relying upon the assurance given by the non-applicant No.1 she gave

Rs.10,00,000/- to him vide cheque bearing No.000011, dated

7.9.2017 drawn on the HDFC Bank through broker of the petitioner, J-cwp108.21.odt 13/24

namely, Virbhan Totaram Zambani. The petitioner had issued the

deposit note dated 7.9.2017 to the respondent No.2 acknowledging

that he had received the above mentioned amount. According to the

respondent No.2, the petitioner assured to give returns at 1.80% after

every four months and he made the necessary endorsement to that

effect on the deposit note. As per the contention of the respondent

No.2 she was entitled to get amount of Rs.2,88,000/- towards returns

as on 1.8.2020. On making inquiry the petitioner gave the cheque of

Rs.10,00,000/- bearing No.851719 drawn on IndusInd Bank,

Amravati to the respondent towards discharge of his liability. The

respondent No.2 deposited the said cheque in the Bank on 10.8.2020

and the same was returned with remark "Funds Insufficient". The

respondent No.2 came to know that the petitioner had obtained huge

amounts from various persons and then not repaid the said amount.

Consequently on 17.8.2020 the respondent No.2 issued statutory

notice under Section 138 of the Negotiable Instruments Act. As per

the respondent No.2 the petitioner had committed the offence under

Sections 406 and 420 of the Indian Penal Code and under Section 3 of

the MPID Act. Though she lodged the report but Police have not

taken any cognizance and therefore the respondent No.2 filed

complaint with the Commissioner of Police, Amravati on 24.9.2020.

J-cwp108.21.odt 14/24

After filing the complaint with the Commissioner of Police also no

cognizance was taken and therefore she approached to the Court.

11. The specific allegations made by the respondent No.2

against the petitioner is that by representing himself as a developer of

lay-outs petitioner had obtained amount of Rs.10,00,000/- as a

deposit with an assurance that the respondent No.2 would receive

returns at the rate of 1.80% after every four months. Initially the

petitioner had received only Rs.1,98,000/-. She was entitled to

receive Rs.2,88,000/- towards the returns as on 1.8.2020. As per the

contention of the respondent No.2 as the amount was accepted as a

deposit and not paid the returns on the deposit amount therefore,

provisions under the MPID Act, 1999 are attracted. Admittedly, the

MPID Act, 1999 has been inacted to protect the interest of depositors

in the financial establishments and matters relating thereto. The

statement of objects and reasons of the enactment shows that sole

object of these establishments is of grabbing money received as

deposits from public, mostly middle class and poor on the promises of

unprecedented high attractive rates of interest or rewards and without

any obligation to refund the deposit to the investors on maturity or

without any provision for ensuring rendering of the services in kind in

return. Many of these financial establishments have defaulted to J-cwp108.21.odt 15/24

return the deposit on maturity or to be interest or render services in

kind in return as assured to the public and therefore the Government

of Maharashtra satisfied that in the above circumstances it is

necessary to take immediate action to make a law for the purposes

aforesaid, accordingly this ordinance is promulgated.

12. Section 2(c) of the said Act provides for definition of the

term "deposit", which reads as under :

"2(c) "deposit" includes and shall be deemed always to have included any receipt of money or acceptance of any valuable commodity by any Financial Establishment to be returned after a specified period or otherwise, either in cash or in kind or in the form of a specified service with or without any benefit in the form of interest, bonus, profit or in any other form, but does not include --

(i) amount raised by way of share capital or by way of debenture, bond or any other instrument covered under the guidelines given, and regulations made, by the SEBI, established under the Securities and Exchange Board of India Act, 1992 ;

(ii) amounts contributed as capital by partners of a firm ;

(iii) amounts received from a scheduled bank or a co-operative bank or any other banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 ;

(iv) any amount received from,--

(a) the Industrial Development Bank of India,

(b) a State Financial Corporation, J-cwp108.21.odt 16/24

(c) any financial institution specified in or under section 6A of the Industrial Development Bank of India Act, 1964, or

(d) any other institution that may be specified by the Government in this behalf ;

(v) amounts received in the ordinary course of business by way of,--

(a) security deposit,

(b) dealership deposit,

(c) earnest money,

(d) advance against order for goods or services ;

(vi) any amount received from an individual or a firm or an association of individuals not being a body corporate, registered under any enactment relating to money lending which is for the time being in force in the State ; and

(vii) any amount received by way of subscriptions in respect of a Chit. Explanation I.--"Chit" has the meaning as assigned to it in clause (b) of section 2 of the Chit Funds Act, 1982 ;

Explanation II.-- Any credit given by a seller to a buyer on the sale of any property (whether movable or immovable) shall not be deemed to be deposit for the purposes of this clause ;

13. Section 2(d) defines "Financial Establishment" means any

person accepting deposit under any scheme or arrangement or in any

other manner but does not include a corporation or a co-operative

society owned or controlled by any State Government or the Central J-cwp108.21.odt 17/24

Government or a banking company as defined under clause (c) of

section 5 of the Banking Regulation Act, 1949.

14. After considering the allegations made by the respondent

No.2 it is apparent that the respondent No.2 had deposited

Rs.10,00,000/- with the petitioner and petitioner had assured that he

would give quarterly returns at 1.80%. However, he failed to give

assured returns and accordingly he issued the cheque of

Rs.10,00,000/- drawn on IndusInd Bank. It is not in dispute that the

petitioner had issued the cheque for Rs.10,00,000/- in favour of the

respondent No.2. Said cheque was deposited by the respondent No.2

and it was returned with endorsement "Funds Insufficient". As per

the contention of the petitioner he has obtained the hand-loan as he

was in need of financial assistance for the treatment of his mother and

the cheque which was in question was given by him to the respondent

No.2 by way of security. As per his contention the transaction

between him and respondent No.2 is of hand-loan transaction and the

said cheque was issued by way of security. Due to the financial crisis

in business he could not pay the amount and respondent No.2 had

deposited the said cheque which was returned with endorsement

"Funds Insufficient" on 13.8.2020. The notice was also issued by the

respondent No.2 on 17.8.2020 and another notice was issued on J-cwp108.21.odt 18/24

4.9.2020. It is submitted by the learned Senior Advocate Shri A.S.

Mardikar that the transaction between the petitioner and the

respondent No.2 is only to the extent of hand-loan and the cheque

was issued against liability. The said cheque was issued as towards a

discharge of debt and no offence is made out under the provisions of

Section 3 to 10 of the MPID Act. He further submitted that the

Special Court had not considered the same and wrongly observed that

the provisions of the MPID Act are attracted and wrongly issued the

directions of investigation. In support of his contention he relied upon

T.T. Antony vs. State of Kerala and others, reported in (2001) 6 SCC

181, wherein Hon'ble Apex Court had considered the question

whether there can be a second F.I.R. It is held by the Hon'ble Apex

Court in the said judgment that only information about commission of

a cognizable offence which is first entered in station house diary by

officer in charge of the police station can be regarded as FIR under

Section 154 - All such subsequent information will be covered by

Section 162 - Officer in charge of the police station has to investigate

not merely the cognizable offence reported in the FIR but also other

connected offences found to have been committed in the course of the

same transaction. He further relied upon Ashish Mahendrakar vs.

State of Maharashtra and others, reported in 2019 SCC OnLine Bom J-cwp108.21.odt 19/24

1865, wherein a question of seminal importance is raised under

Article 226 of Constitution of India and Section 482 of the Code of

Criminal Procedure, 1973, namely, whether the inter-corporate

deposit/loan, i.e., a loan advanced/deposit made by a company with

another company registered under the provisions of the Companies

Act, 1956 would amount to a "deposit" within the meaning and for

the purpose of the Maharashtra Protection of Interest of Depositors

(In Financial Establishments) Act, 1999 was involved.

15. After giving consideration to the averments made by the

respondent No.2 in the complaint and the submission made by the

petitioner, which is apparent that the deposit note dated 7.9.2017 was

issued by the petitioner. Prima facie, the recitals of the deposit note

indicate that the petitioner had accepted the amount from the

respondent No.2. The recitals of the said deposit note shows that it is

named as Jama-Chitthi. At the left hand corner of the said deposit

note 1.50 + 0.30 = 1.80 and 4 months is written which according to

the respondent No.2 is the assurance given by the petitioner. Said

deposit note is written on the letter-pad of the petitioner. At the stage

of giving direction regarding investigation prima facie case is to be

established. It appears from the said deposit note that the petitioner

had assured the respondent No.2 that he would give quarterly returns J-cwp108.21.odt 20/24

at 1.80% on the amount deposited. In fact the perusal of the

statements of the account of the respondent No.2 shows that during

the period from 30.1.2018 to 13.11.2019 respondent No.2 had

received regular interest on the amount given by her to the petitioner.

Learned Senior Advocate Shri Sunil Manohar rightly pointed out that

the observations made by the Sessions Judge in the order specifically

state that from the deposit note it is apparent that the petitioner had

assured respondent No.2 that he would give quarterly returns at

1.80% which is also reflected in the deposit note. He further

submitted that the definition of the financial establishment includes

an individual. He invited our attention towards the definition of

financial establishment, wherein it is stipulated that the financial

establishment means any person accepting deposit under any scheme

or arrangement or in any other manner, thus any person is included in

the definition of financial establishment. It only excludes a

corporation or a co-operative society or Banking Company which are

defined under clause (c) of Section 5 of the Banking Regulation Act.

The material on record sufficiently shows that respondent No.2 had

deposited Rs.10,00,000/- as petitioner assured about the returns and

respondent No.2 had also received the returns for the period

30.1.2018 to 13.11.2019 which is reflected in the statement of J-cwp108.21.odt 21/24

account of the petitioner. Therefore, the contention of the petitioner

that it was out and out hand-loan transaction and the cheque was

issued against the said hand-loan transaction cannot be accepted at

this preliminary stage. The decisions on which petitioner relied are

not applicable in the present case, as in the cited case facts of the case

shows that when a Minister had sought to inaugurate a Cooperative

Bank, violent demonstrations were staged by the members of the

youth wing. Two offences were registered regarding the said incident.

Thereafter inquiry was initiated and Executive Magistrate submitted a

report to the District Collector. The District Collector informed the

Commissioner and Secretary to the Government and directions were

given to register the FIR. In view of abovesaid facts, the observation

was made by the Hon'ble Apex Court that all such subsequent

information will be covered by Section 162 of the CrPC. In the said

judgment the Hon'ble Apex Court had also discussed the scope of

Section 154 of the CrPC.

16. The another judgment on which the petitioner relied upon

is the Ashish Mahendrakar vs. State of Maharashtra and others

(supra) in which this Court discussed the scope of definition of deposit

and financial establishment and held that the definition of 'deposit'

and 'financial establishments' are rather expansive. The inclusive J-cwp108.21.odt 22/24

definition of 'deposit' covers any receipt of money or acceptance of

any valuable commodity, except those amounts which have been

specifically excluded by sub-clauses (v) to (vii) thereof likewise, any

person accepting deposits under any scheme or any other manner

satisfies the description of financial establishment. Thus, any person

means an individual is included in the definition of financial

establishment. In this backdrop and in the light of well settled legal

position, Section 156(3) CrPC includes power to order the registration

of a FIR by directing proper investigation if the Magistrate is satisfied

that proper investigation has not been done or is not being done by

the Police. Section 156(3) CrPC has a wide scope and includes all

such incidental powers which are necessary for proper investigation.

17. In the present case, the facts which are on record makes it

clear that upon the invocation of the jurisdiction of the Magistrate

under Section 156(3) of CrPC the Special Judge came to the

conclusion that the allegations which are levelled against the

petitioner by the respondent No.2 and the supporting documents in

this regard, the statements of complainant were satisfactory. After

taking note of the fact that the Police at an earlier stage had not taken

the cognizance the Special Judge opined that from the facts on record

brought by the complainant through the complaint prima facie J-cwp108.21.odt 23/24

occurrence of an offence has made out. Therefore, in such cases

where prima facie the learned Special Judge has found the

commission of a cognizable offence alleged on reading of a complaint

and on the basis of documents the need for police investigation is

found, then the discretion granted in Section 156(3) needs to be

exercised. The learned Special Judge had exercised the said

discretion. There is not only the statement of the complainant but the

documentary evidence which is in physical possession of the

respondent No.2 sufficiently shows that prima facie the offence is

made warranting investigation. The allegations made by the

respondent No.2 and the documents on record clearly shows that the

respondent No.2 had deposited the amount of Rs.10,00,000/-,

petitioner had assured the return at 1.80%. The note of deposit also

shows that there was an agreement to give return at the rate of

Rs.1.80% to the respondent No.2. The respondent No.2 had received

the returns for certain period and thereafter the petitioner had made

default. In view of all the circumstances and the amount deposited by

the respondent No.2 which petitioner could not return, we hold that

no interference with the impugned order is called for. The directions

given by the learned Special Judge are as per the legal provisions and

within the scope of Section 156(3) of CrPC. In the result, the writ J-cwp108.21.odt 24/24

petition has no merit and liable to be dismissed. Hence, we proceed

to pass following order :

ORDER

(i) The Writ Petition is dismissed.

(ii) It is however clarified that the observations made are

only for consideration of the challenge as raised to

the impugned order and shall not be construed as

expression of any opinion on merits.

(iii) In view of prayer clause (ii), interim relief is extended

upto four weeks.

18. Rule is discharged. No costs.

(Urmila Joshi-Phalke, J.) (A.S.Chandurkar, J.)

okMksns

Signed By:DEVENDRA WASUDEORAO WADODE PA to the Hon'ble Judge

Signing Date:21.10.2022 17:58