S.S.Rajamouli vs The State Of Ap., Another
2022 Latest Caselaw 3918 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                CRL.P.Nos.7045 & 9616 OF 2013

COMMON ORDER:

      Since these criminal petitions arise out of the same subject

matter, they are being disposed of by this common order.


2.    Crl.P.No.7045 of 2013 is filed by petitioner/A-1 under

Section 482 Cr.P.C., to quash the order dated 03.01.2013 in

Crl. Revision Petition No.313 of 2012, on the file of the learned

Metropolitan Sessions Judge, Hyderabad, whereas Crl.P.No.9616

of 2013 is filed by petitioner/A-2 to quash the order dated

03.01.2013 in Crl. Revision Petition No.313 of 2012, on the file of

the learned Metropolitan Sessions Judge, Hyderabad and the

consequential proceedings in C.C.No.898 of 2013, on the file of

the   learned   III-Additional   Chief   Metropolitan   Magistrate,

Namaplly, Hyderabad.


3.    Heard learned counsel for the petitioners/A-1 & A-2 and

learned Assistant Public Prosecutor for the first respondent/State.

None appears for the second respondent/complainant. Perused the

record.

4. The second respondent herein filed a private complaint in

S.R.No.4213 of 2012 before the learned III-Additional Chief

Metropolitan Magistrate, Hyderabad alleging that he had entered

into an agreement of sale with A-1 and paid an amount of

Rs.2,15,000/- towards earnest money. A-1 promised to hand over

electricity bill, property tax bill, loan clearance papers etc., to the

complainant to enable him to borrow loan from the bank.

Subsequently, A-1 got issued a legal notice cancelling the

agreement of sale and stating that he has sold the flat to A-2. The

learned Magistrate, after considering the material on record, has

rejected the complaint of the second respondent by order dated

12.07.2012.

5. Aggrieved by the same, the second respondent preferred

revision in Crl.R.P.No.313 of 2012 before the learned Metropolitan

Sessions Judge, Hyderabad. The learned Metropolitan Sessions

Judge, considering the facts and circumstances of the case, had set

aside the order dated 12.07.2012 passed by the learned Magistrate

in S.R.No.4213 of 2012 with a direction to entertain the complaint

by following the relevant provisions of Cr.P.C. Not satisfied

with the same, the petitioners/A-1 and A-2 preferred the present

revisions.

6. Learned counsel for the petitioners contends that the orders

passed by the learned Metropolitan Sessions Judge are illegal

and not tenable either in law or on facts. Even a reading of the

allegations in the complaint does not disclose any cognizable

offences against A-1 and A-2. The learned Magistrate has

exercised discretion in the matter and has rightly rejected the

complaint by not referring it to the police under Section 156(3) for

investigation. He further contends that the learned Metropolitan

Sessions Judge has not given any justifiable reasons for setting

aside the order of the learned Magistrate.

7. Learned Assistant Public Prosecutor submits to decide the

subject matter on merits.

8. A perusal of the impugned order would reveal that

the learned Metropolitan Sessions Judge has elaborately

discussed the procedural aspect as to how a complaint has to

be dealt with under Sections 156(3) and Sections 200 to 203

Cr.P.C. The learned Metropolitan Sessions Judge has observed in

the impugned order that the learned Magistrate has not followed

the procedure contemplated under Sections 200 to 203 Cr.P.C., and

as per the said sections, there is no provision for rejection of the

private complaint and that the said rejection is not supported by

any provision of law, and, accordingly, set aside the impugned

order with a direction to entertain the complaint by following the

relevant provisions of Cr.P.C.

9. The Hon'ble Supreme Court in a decision in MADHAO v.

STATE OF MAHARASHTRA1 referred to the judgment of the

Apex Court in CREF FINANCE LTD., v. SHREE SHANTHI

HOMES (P) LTD2 wherein the Hon'ble Apex Court while

considering the power of a Magistrate taking cognizance of the

offence held as under:

(2013) 5 SCC 615

(2005) 7 SCC 467

"Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure...." It is clear that any judicial magistrate before taking cognizance of the offence can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein".

10. In MADHAO's case (1 supra), the Hon'ble Apex Court held

as under:

"When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the

complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)".

11. In RAMDEV FOOD PRODUCTS (P) LTD. v. STATE

OF GUJARAT3, the Hon'ble Apex Court while dealing with the

exercise of power under Section 156(3) Cr.P.C by the learned

Magistrate held as under:

"The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and

(2015) 6 SCC 439

finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued".

12. In the instant case, the learned Metropolitan Sessions Judge,

while dealing with the power of a Magistrate when he receives a

complaint and the procedure to be followed thereon, has rightly

held that there is no procedure for rejection of complaint.

However, keeping in view the law laid down by the Hon'ble Apex

Court in the above decisions, the Magistrate has discretion which

has to be exercised only after application of mind as to whether the

allegations prima facie disclose cognizable offence or not and

when the complaint specifically discloses that it is civil in nature.

The learned Magistrate has rejected the complaint instead of

referring the same to police for investigation.

13. Coming to the allegations in the complaint, the complainant

had entered into an agreement of sale for purchase of a flat on

01.11.2011 with A-1 and, accordingly, paid substantial amount

towards advance sale consideration. Later, when the second

respondent failed to pay the balance sale consideration within the

stipulated time, A-1 got issued a legal notice and cancelled the

agreement of sale. A perusal of the agreement of sale, coupled

with the legal notice, clearly reveals that the dispute between

the parties appears to be purely civil in nature and is being given

cloak of criminal offence, obviously to apply pressure on the

accused. Under those circumstances, the continuance of criminal

proceedings against the petitioners would certainly amount to

abuse of process of law.

14. Though technically there is procedural irregularity in the

order of the learned Magistrate, but the fact remains that legally

the order appears to be correct. The correct procedure is the

learned Magistrate ought to have examined the complaint, recorded

the statement of the complainant and other witnesses, if any, and

passed appropriate orders. Instead of doing so, he rejected the

complaint. Therefore, having regard to the same, the learned

Metropolitan Sessions Judge has ordered the learned Magistrate to

follow the provisions of Cr.P.C.

15. For the foregoing reasons, I am of the view that the matter

between the parties appears to be purely a civil dispute and the

second respondent by filing a complaint tried to convert the same

into a criminal offence and the same if permitted to be allowed

certainly amounts to abuse of process of court. It is, therefore,

considered a fit case to invoke the inherent powers of this Court

under Section 482 Cr.P.C and quash further proceedings against

the petitioners.

16. The criminal petitions are, accordingly, allowed. The order

dated 03.01.2013 in Crl.Revision Petition No.313 of 2012, on the

file of the learned Metropolitan Sessions Judge, Hyderabad, is set

aside and the resultant proceedings against the petitioners/A-1 &

A-2 in C.C.No.898 of 2013, on the file of the said court, are hereby

quashed.

17. Pending miscellaneous petitions, if any, stand closed.

_______________________ A.SANTHOSH REDDY, J 28.07.2022 Lrkm