Gujarat High Court
Dipakbhai Kamleshbhai Gohil The Sales ... vs State Of Gujarat on 3 July, 2025
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R/SCR.A/6461/2025 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 6461 of 2025
With
R/SPECIAL CRIMINAL APPLICATION NO. 6466 of 2025
With
R/SPECIAL CRIMINAL APPLICATION NO. 6467 of 2025
With
R/SPECIAL CRIMINAL APPLICATION NO. 6476 of 2025
With
R/SPECIAL CRIMINAL APPLICATION NO. 6477 of 2025
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DIPAKBHAI KAMLESHBHAI GOHIL THE SALES MANGER OF TIRTH GOLD
PARTNERSHIP FIRM
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR BHAUMIK DHOLARIYA(7009) for the Applicant(s) No. 1
MR MANAN MAHETA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 03/07/2025
COMMON ORAL ORDER
[1.0] Since the issue involved in all these petitions is same and all the
petitions are filed challenging the order passed by the learned
Magistrate sending the complaint of the respective petitioners -
original complainants against common respondent Nos.2 to 8, for
inquiry under Section 202 of the Code of Criminal Procedure, 1973 (for
short "CrPC") and which has been upheld by the learned Additional
Sessions Judge, all these petitions are heard, decided and disposed of
by this common oral judgment.
[2.0] By way of present petitions under Articles 14, 21, 226 and 227
of the Constitution of India, the petitioners - original complainants are
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seeking quashing of order passed by the learned 15 th Additional Senior
Civil Judge and Chief Judicial Magistrate, Surat below Exh.1 as well as
the order passed by the learned 12 th Additional Sessions Judge, Surat.
The details of order passed by the learned Magistrate as well as
learned Additional Sessions Judge qua respective petitioners is as
under:
Sr. No. SCR.A No. CR.MA No. CR.RA No.
For the sake of brevity and convenience, Special Criminal
Application No.6461 of 2025 is taken as a lead matter and facts of the
said petition are considered.
[3.0] That, the petitioner - original complainant is engaged in the
business of buying and selling gold as well as processing gold as per
the orders. Respondent Nos.2 to 8 - accused are also in the business
of gold jewelry and they buy gold from various traders on credit in
accordance with market norms and selling it in retail in the name of
the partnership firm namely "Varman Jewelers". It is further the case
that the accused after purchasing the gold from the respective
petitioners did not pay the amount and with the same modus operandi,
the accused duped and cheated the respective petitioners and
therefore, the respective petitioners - original complainants filed
detailed complaints with Umra Police Station against the accused for
the offence under Sections 406, 409, 420, 114, 120(B) and 34 of the
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IPC however, even after several efforts, the same was not registered
as an FIR and therefore, the petitioners were constrained to file
respective applications before the learned Magistrate under Section
156(3) of the CrPC for registration of FIR.
[3.1] The learned Magistrate vide the impugned order sent the
complaint of the respective petitioners for police inquiry under
Section 202 of the CrPC. Being aggrieved with the said order, the
petitioners filed respective Criminal Revision Applications before the
learned Additional Sessions Judge which was also dismissed and
confirmed the order passed by the learned Magistrate.
[3.2] Being aggrieved with both the orders, the petitioners have filed
respective petitions as detailed hereinabove.
[4.0] Heard learned advocate for the petitioner and learned APP for
respondent No.1 - State of Gujarat.
[5.0] Learned advocate for the petitioner has submitted that the
learned Magistrate has committed an error and no reason is assigned
as to why the matter is not referred to or directed for investigation
under Section 156(3) of the CrPC and has been sent by the learned
Magistrate for inquiry under Section 202 of the CrPC. The learned
Magistrate has not properly exercised the discretion despite of the
fact that cognizable offence is made out. The learned Magistrate is
not justified in not passing order for investigation under Section
156(3) of the CrPC. Considering the nature of offence, custodial
interrogation of the accused persons is required though the learned
Magistrate has ordered inquiry under Section 200 / 202 of the CrPC.
To buttress his argument, learned advocate for the petitioner has
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relied on the decision of Allahabad High Court in the case of Hari
Krishna Das Gupta vs. State of U.P. reported in 2007 (25) RCR
(Criminal) 120 and decision of Kerala High Court in the case of
Fameena .E vs. State of Kerala reported in 2023(1) KLT 919 and
submitted that discretion implied in Section 156(3) of the CrPC cannot
be exercised arbitrarily and learned Magistrate having no authority to
refuse to send the complaint for investigation. The learned Magistrate
has wide power under Section 156(3) of the CrPC which ought to have
been exercised to meet the ends of justice and therefore, he has
requested to allow the present petitions and quash and set aside the
order passed by the learned Magistrate and remit back the matters to
learned Magistrate to pass appropriate order under Section 156(3) of
the CrPC.
[6.0] Per contra, learned APP has vehemently opposed the present
petitions and submitted that the learned Revisional Court as well as
the learned Magistrate have assigned proper reasons while passing
the impugned orders. The alleged incident took place in the year 2023
and considering the nature of allegation, learned Magistrate has come
to conclusion that police inquiry is necessary prior to taking any
cognizance or directing investigation under Section 156(3) of the
CrPC. Considering the allegations, there is no need of any recovery or
documentary evidence or any other material. As per the prevailing
commercial practice, the proposed accused - respondent Nos.2 to 8
have received the gold ornament worth of Rs.8,64,062/- and
thereafter, they have not made the payment and thereby they have
committed the alleged offence punishable under Sections 406, 409,
420, 114, 120(B) and 34 of the IPC. The alleged incident is with regard
to commercial transaction between the respective petitioners and
"Varman Jewelers". Hence, learned Magistrate come to conclusion
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that the police inquiry is required for finding out whether the offence
is made out or not and the learned Magistrate has properly exercised
the discretion and has not committed any error. Even otherwise, there
is no prejudice caused to the respective petitioners - original
complainants by the learned Magistrate by merely passing an order
calling for police report under Section 202 of the CrPC. Hence, he has
requested to dismiss the present petitions.
[7.0] I have given thoughtful consideration to the arguments
canvassed by learned advocates for respective parties.
[7.1] At the outset, perusing the allegation in all the complaints, it
appears that the dispute is pertaining to a commercial transaction and
the main grievance of the petitioner is that instead of sending the
complaint for investigation under Section 156(3) of the CrPC, learned
Magistrate has sent the complaint for police inquiry under Section 202
of the CrPC. The learned Magistrate is not duty bound to pass any
order as per the ask of the complainant. Perusing the nature of
allegation and the commercial transaction and in view of the law laid
down by the Hon'ble Apex Court in the case of XYZ vs. State of MP
reported in (2023)9 SCC 705, as regards exercise the powers under
Section 156(3) of the CrPC, the Hon'ble Supreme Court has observed
and held in paragraph No.19 as under:
"19. Second, we deal with the issue of the discretion granted to
a Magistrate vis-a-vis the exercise of powers under Section
156(3) CrPC. On this issue, the High Court has held that the
JMFC was not under an obligation to direct the police to register
the FIR and the use of the expression "may" in Section 156(3)
CrPC indicated that the JMFC had the discretion to direct the
complainant to examine witnesses under Sections 200 and 202
CrPC, instead of directing an investigation under Section
156(3)."
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[7.2] Herein, learned Magistrate wants to inquire as to whether prima
facie any cognizable offence is made out or not. Instead of directing
the investigation under Section 156(3) of the CrPC, considering the
nature of allegation, learned Magistrate has passed an order to call for
the police report under Section 200 of the CrPC and even otherwise
perusing the powers of inquiry vested with the learned Magistrate, it
appears that no error has been committed by the learned Magistrate.
In this regard it is apposite to refer to the decision of Hon'ble Supreme
Court in the case of Mohinder Singh v. Gulwant Singh reported in
(1992) 2 SCC 213, the Hon'ble Supreme Court observed thus:
"11. ...The scope of enquiry under Section 202 is extremely
restricted only to finding out the truth or otherwise of the
allegations made in the complaint in order to determine whether
process should issue or not under Section 204 of the Code or
whether the complaint should be dismissed by resorting to Section
203 of the Code on the footing that there is no sufficient ground
for proceeding on the basis of the statements of the complainant
and of his witnesses, if any. But the enquiry at that stage does not
partake the character of a full dress trial which can only take
place after process is issued under Section 204 of the Code calling
upon the proposed accused to answer the accusation made
against him for adjudging the guilt or otherwise of the said
accused person. Further, the question whether the evidence is
adequate for supporting the conviction can be determined only at
the trial and not at the stage of the enquiry contemplated under
Section 202 of the Code. To say in other words, during the course
of the enquiry under Section 202 of the Code, the enquiry officer
has to satisfy himself simply on the evidence adduced by the
prosecution whether prima facie case has been made out so as to
put the proposed accused on a regular trial and that no detailed
enquiry is called for during the course of such enquiry."
Thus, it is settled position of law that the enquiry under Section
202 of the CrPC is not full-fledged trial, but only limited to very the
prima facie truthfulness in the allegations made in the complaint as to
whether there is any sufficient ground to proceed against accused or
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not. The enquiry under Section 202 of the CrPC is to be held 'absentia'
of accused and his defence version is not required to be gone into to
determine whether sufficient grounds exist to proceed against
accused.
[8.0] The scope and ambit of enquiry under Section 202 of the Code
was succinctly laid down by Hon'ble Apex Court in the case of Chandra
Deo Singh vs. Prakash Chandra Bose alias Chabi Bose and another
reported in AIR 1963 SC 1430. For determining the question whether
any process is to be issued or not? What the learned Magistrate has to
be satisfied is whether there is sufficient ground for proceeding and
not whether there is sufficient ground for the conviction. Whether the
evidence is adequate for supporting the conviction can be determined
only at the trial and not at the stage of enquiry. The object of enquiry
under Section 202(1) itself is to ascertain the truth or falsehood of the
complaint, but the learned Magistrate making enquiry has to do this
only with reference to the intrinsic quality of the statements made
before him at the enquiry which would naturally mean the complaint
and the statements made before him by persons examined at the
instance of the complainant.
[9.0] In view of above, learned Magistrate has properly exercised the
discretion and merely as per the whims of the complainant or only
because the complainant has asked for an order under Section 156(3)
of the CrPC, the learned Magistrate is not duty bound to pass any
order under Section 156(3) of the CrPC more particularly when the
offence is of commercial transaction and alleged offence is under
Sections 406, 409 and 420 of the IPC and in view of misuse of power of
the police and to give a cloak of criminality to the commercial
transaction.
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[9.1] Even otherwise, considering the directions given by the Hon'ble
Supreme Court in the case of Rikhab Birani & Anr. vs. State of Uttar
Pradesh & Anr. reported in 2025 INSC 512 and as the allegation of on
approval (Jangad) gold is given, and neither paid money nor returned
articles and hence, as to whether an act falls in the category of
cheating or breach of promise is also required to be considered and
even the offence of cheating and criminal breach of trust cannot go
together and therefore, in view of the decision of the Hon'ble
Supreme Court in the case of Delhi Race Club (1940) Ltd. & Ors. vs.
State of Uttar Pradesh & Anr. reported in 2024 INSC 626, the
learned Magistrate has properly exercised the jurisdiction and there is
no any prejudice caused to the present petitioners - original
complainants as the learned Magistrate has only called for a police
report and has not turned down or dismissed the application or
complaint of the present petitioners. Even, the learned Revisional
Court has not committed any error while dismissing the respective
revision applications.
[10.0] Now, so far as the decisions relied on by the learned
advocate for the petitioners on the case of Hari Krishna Das Gupta
(Supra) and Fameena .E (Supra) are concerned, it is worth to mention
that the facts of the said cases were different and therefore, said
authorities would not avail any assistance to the petitioners in the
peculiar facts of the case on hand considering the fact of case on
hand.
[11.0] At this stage, it is appropriate to refer to the decision of
the Hon'ble Supreme Court in the case of Radhe Shyam vs. Chhabi
Nath reported in (2015) 5 SCC 423, wherein it is observed and held
that the judicial orders of Courts are not amenable to writ jurisdiction
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under Article 226 of the Constitution and jurisdiction under Article
227 is distinct from the jurisdiction under Article 226 of the
Constitution. At this stage it is also apposite to refer to the decision of
the Hon'ble Supreme Court in the case of M/s. Garment Craft vs.
Prakash Chand Goel reported in (2020) 4 SCC 181, wherein in
paragraph 77 it is held that High Court does not act as a Court of first
appeal while exercising jurisdiction under Article 227 and to re-
appreciate, re-weight evidence or fact except error apparent on the
face of the record or perversity in findings and when second view is
available, Court should not overturn the findings.
[11.1] Further, the Hon'ble Apex Court in the case of Malkeet
Singh Gill vs. State of Chattisgarh reported in (2022) 8 SCC 204
conjointly with the observations made hereinabove as regards there
being no any perversity in the impugned judgment and order of the
learned trial Court as well as the learned Appellate Court, no
interference is required.
[12.0] In wake of the aforesaid discussion, the learned
Magistrate as well as the learned Revisional Court have not committed
any error while passing the impugned orders and therefore, no
interference is called for by this Court in exercise of powers under
Article 226 and 227 of the Constitution of India. Hence, present
petitions being devoid of any merit stand dismissed.
(HASMUKH D. SUTHAR, J.)
Ajay
