Bombay High Court
Deepak Bajaj And Anr vs The State Of Maharashtra And Anr on 2 May, 2024
Author: A. S. Gadkari
Bench: A. S. Gadkari
2024:BHC-AS:20696-DB
Jyoti 243-APL 1310-.2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1310 OF 2016
1. Mr. Deepak Bajaj
Age:- Adult;Occu;-Service
Residing at Flat No.202,
Chinar apartments
Sector- 20, Panchkula
Haryana - 134117
2. Mr. Amitabh Ranranjan Mukharjee
Age:- Adult: Occ:- Service
Hewlett Packard India Sales Pvt.Ltd.
1st Floor, Regus Business Centre
Mid Town Plaza, Road, No.1
Banjara Hills, Hyderabad. .. Applicants
vs.
1. The State of Maharashtra
through the Vishrantwadi Police Station,
Pune
2. Mr.Pramod Babasaheb Korde
JYOTI
RAJESH Age:- 46 yrs. Occu:- Director,
MANE Sharada Integrated Systems Pvt.Ltd.
Digitally signed At Shop NO.123, Jaiganesh Vishv,
by JYOTI RAJESH
MANE
Date: 2024.05.06
Vishrantwadi, Pune- 411015. .. Respondents
13:42:12 +0530
Mr. Karansingh Rajput a/w. Shailesh P. i/b. Economic Laws Practice, for the
Applicants.
Mr. S.V. Gavand, A.P.P. for the Respondent No.1-State.
CORAM: A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 18th April 2024
PRONOUNCED ON : 2nd May 2024
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::: Uploaded on - 06/05/2024 ::: Downloaded on - 15/05/2024 19:38:51 :::
Jyoti 243-APL 1310-.2016.doc
JUDGMENT:
[PER- SHYAM C. CHANDAK, J.]
1) Present Application filed under Section 482 of the Criminal
Procedure Code (for short 'Cr.P.C.'), is seeking for quashing of an Order
dated 27th April 2016, passed under Section 156 (3) of Cr.P.C. by the
learned J.M.F.C, Khadki, Pune in M.A.No.124/2016 (for short 'the
Application') and the consequent F.I.R. bearing No.101 of 2016 dated 19 th
May 2016 qua the Applicants, registered with Vishrantwadi Police Station,
Pune for the offences punishable under Section 420, 406, 471, 120B r/w.
34 of IPC.
2) Heard learned Advocate Mr. Karansingh Rajput for the
Applicant and Mr. Gavand, learned A.P.P. for the Respondent-State. Perused
the record.
3) Record indicates that, by an Order dated 17th February 2017,
Rule was issued and the learned APP for Respondent No.1-State and
Mr.Filjee Fredrick and Ms. Prateeti Thakur for Respondent No.2 waived
notice. Further, as an interim relief, it was directed that, investigation shall
continue, However, charge-sheet shall not be filed as against the Applicants
without leave of this Court. Yet, none appeared for the Respondent No.2,
when the Application was taken up for final hearing.
4) The facts giving rise to this Application are as under:-
4.1) That, Respondent No.2 is Director of M/s.Sharda Integrated
Jyoti 243-APL 1310-.2016.doc
Systems Private Limited and he has been doing the business of Computer
and peripherals etc. That, Vikas Tyagi and Madan Singh are respectively
owner and Manager of M/s. Vertex IT Solutions Pvt. Ltd., at Gurgaon,
Haryana, (for short, 'Ms.Vertex Co.'). The Applicants, Vikas Tyagi and
Madan Singh have been arraigned as accused Nos.1 to 4 respectively in the
said Application.
4.2) It is alleged that, between 10th December 2014 to 14th
December 2014, the Applicants repeatedly called the Respondent No.2, and
requested him to supply on credit 168 laptops to M/s. Vertex Co., by giving
assurance that the payment of said goods will be made within agreed 21
days. Respondent No.2 trusted the Applicants he was silver partner of
M/s.Hewellt-Packard India Sales Pvt. Ltd. and the Applicants were its
representative. Hence he agreed to supply the laptops. On 15th December
2014, accused No.3 and 4 placed the purchase order. In turn, Respondent
No.2 purchased 168 laptops from M/s. Iris Computers and supplied it to M/
s. Vertex Co. on 18th December 2014 and 30th December 2014, alongwith its
bill. Accused No.4 acknowledged the receipts of the goods by an e-Mail.
Thereafter, giving a pretext of urgency, the accused No.4 requested the
Respondent No.2 to supply additional 73 laptops to M/s. Vertex Co. and
promised that, its purchase order will follow. Respondent No.2 agreed to
supply the additional laptops with intent to make the business relations
Jyoti 243-APL 1310-.2016.doc
strong. Then, Respondent No.2 purchased 73 laptops from M/s. Ingram
Micro India Pvt. Ltd. and, on 3 rd January 2015 supplied it to M/s.Vertex Co.
alongwith the necessary bill there. Thereafter, between 17 th January 2015
to 2nd March 2015, M/s. Vertex Co. paid Rs.26,50,000/- towards the 241
laptops but avoided to pay the balance bill amount of Rs.43,20,216.40/-. It
is stated that, the cheques drawn by M/s.Vertex Co. in favour of M/s.Iris
Computer Pvt. Ltd. and M/s. Ingram Micro India Pvt. Ltd. towards supply of
the laptops on the say of Respondent No.2, dishonoured. Consequently, the
said companies stopped doing business with the Respondent No.2 and his
'Good will' lost. Thus, the Applicants with accused Nos.3 and 4 deceived the
Respondent No.2 and dishonestly induced him to supply total 241 laptops
to M/s. Vertex Company but without any intention to pay the price thereof.
Therefore, on 16th January 2016, Respondent No.2 filed a complaint with
Deputy Commissioner of Police, Economic Offence Detection Department,
Crime Branch, at Pune. Said complaint was referred to Vishranwadi Police
Station, however, no action was taken thereon. Hence, the Respondent No.2
filed the M.A.No.124 of 2016, against the four accused.
4.3) In view of the aforesaid allegations the learned Magistrate
passed the impugned Order dated 27th April 2016, which reads as under:
"Perused complaint, copies of complaint filed with police, alleged
offences are congnizable, no action taken by police, which needs
investigation, hence complaint be sent for investigation u/s. 156(3)
Jyoti 243-APL 1310-.2016.doc
of the Cr.P.C. with direction to submit report within 2 months."
4.4) Pursuant to the aforementioned Order, Vishrantwadi Police
Station registered the said F.I.R. No. 101 of 2016. Hence this Application.
5) Mr. Rajput, learned Advocate for the Applicants submitted that,
the complaint does not constitute the alleged offences. The Respondent
No.2 has not complied with the provisions of Section 154 (1) and (3) of
Cr.P.C. before filing said Application u/Sec.156 (3) of Cr.P.C. For these
defects, according to the learned Advocate, the impugned Order and said
F.I.R are not legal, hence the same may be quashed.
6) Mr.Gavand, learned A.P.P. stongly resisted the Application
claiming that there is no shortcoming as argued by the learned Advocate.
7) In the case of Priyanka Srivastava and Anr. Vs. State of Uttar
Pradesh and Ors., reported in (2015) 6 SCC 287, it is held that, there has to
be prior application under Section 154 (1) and 154 (3) of Cr.P.C. while
filing a petition under Section 156 (3) of Cr.P.C. Both the aspects should be
clearly spelt out in the application and necessary documents to that effect
should be filed.
8) In the case in hand, on 16th January 2016, the Respondent
No.2 had filed a complaint with the Deputy Commissioner of Police,
Economic Offence Detection Department, Crime Branch, at Pune. Said
complaint was sent for necessary action to Vishrantwadi Police Station,
Pune. The impugned Order shows that, copy of a complaint filed with the
Jyoti 243-APL 1310-.2016.doc
police was enclosed with the Application. However, according to us, this is
not a compliance with Section Section 154 (1) of Cr.P.C. by the Respondent
No.2 as he himself did not file his report (F.I.R.) directly with the Police
Station concerned.
9) Section 154 (3) of Cr.P.C. requires that, any person, aggrieved
by a refusal on the part of an officer in charge of a police station to record
the information referred to in Sub-Section (1) may send the substance of
such information in writing and by post, to the Superintendent of Police
concerned for the needful. However, in the said Application, Respondent
No.2 has not mentioned that as Vishranwadi Police Station refused to
register a crime and investigate on his said complaint dated 16 th January
2016, he sent the substance of the information stated in his said complaint,
in writing and by post, to the higher Police Authority concerned, as
provided under Section 154 (3) of Cr.P.C., to redress his grievance. As such,
it is clear that, there was no compliance with Section 154 (3) of Cr.p.C.
before filing of the said Application. However, the learned Magistrate
overlooked this fact before passing the impugned Order.
10) Bare look at the impugned Order shows that, said Order has
been passed by the learned Magistrate only for the reason that, the
Application disclosed the commission of a cognizable offences and no
action was taken by the police on the complaint of Respondent No.2.
Jyoti 243-APL 1310-.2016.doc
However, not a single reason is recorded by the learned Magistrate as to
why he is satisfied that, there is a case of a cognizable offence of cheating,
criminal breach of trust and criminal conspiracy committed by the
Applicants against Respondent No.2. Similarly, from the impugned Order it
is not intelligible as to how the learned Magistrate verified the veracity of
the allegations in the Application. According to us, considering the
narration and allegations in the complaint, the learned Magistrate was
expected to record some reasons as regards the prima facie case of the
cognizable offence and veracity of the complaint.
11) In the backdrop, in our opinion, the learned Magistrate failed
to properly consider the Application and the documents enclosed therewith
before passing the impugned order and also that, there is non compliance
with Section 154 (1) and (3) of Cr.P.C. by the Respondent No.2. Thus, the
learned Magistrate acted mechanically and passed the impugned Order.
Therefore, the impugned Order is not sustainable in law.
12) It is the settled position of law and as has been enunciated by
this Court in the case of Sayed Anwar Ahmed & Anr. vs. The State of
Maharashtra & Anr., reported in 2017 SCC OnLine 3972 that, "While
dealing with a complaint seeking an action under Sub-Section (3) of
Section 156 of Cr.P.C, the learned Magistrate cannot act mechanically. He is
required to apply his mind to the contents of the Complaint and the
Jyoti 243-APL 1310-.2016.doc
documents produced along with the Complaint. An Order passed on the
said complaint must record reasons in brief which should indicate
application of mind by the Magistrate. However, it is not necessary to
record detailed reasons. The power under Sub-Section (3) of Section 156 is
discretionary. Only because on plain reading of the complaint, a case of
commission of cognizable offence is made out, an Order of investigation
should not be mechanically passed. In a given case, the learned Magistrate
can go in to the issue of the veracity of the allegations made in the
complaint. The learned Magistrate must also consider the other relevant
aspects such as the inordinate delay on the part of the Complainant. The
nature of the transaction and pendency of civil proceedings on the subject
are also relevant considerations. Necessary averments regarding compliance
with Sub-Sections (1) and (3) of Section 154 of the Cr.P.C. should be
incorporated with material particulars. Moreover, the documents in support
of the said averments must be filed on record".
13) Upshot of the above discussion is that, the impugned Order
dated 27th April 2016, passed under Section 156 (3) of Cr.P.C. by the
learned J.M.F.C, Khadki, Pune in M.A.No.124/2016 and the consequent
F.I.R. bearing No.101 of 2016 dated 19th May 2016 registered against the
Applicants and 2 others with Vishrantwadi Police Station, Pune for the
offences punishable under Section 420, 406, 471, 120B r/w. 34 of IPC. are
Jyoti 243-APL 1310-.2016.doc
liable to be quashed qua the Applicants and accordingly, are quashed and
set aside.
14) Writ Petition is allowed in terms of prayer clause (B).
14.1) Rule is made absolute.
(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)
