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2001 DIGILAW 1406 (AP)

Abdul Salam v. Mohanlal Laxminarayana

2001-11-05

ELIPE DHARMA RAO

body2001
ELIPE DHARMA RAO, J. ( 1 ) THIS revision is filed against the order dated 3-1-1997 in Criminal M. P. No. 2995 of 1996 on the file of the Judicial I class magistrate, Adilabad. ( 2 ) THE allegation of the petitioner herein is that he filed a private complaint under section 202 of Cr. P. C. against the respondents 1 to 6 in the month of April 1996, which was referred to the Police, Adilabad town for investigation. The offences alleged against the respondents are under Sections 120-B, 451,395 and 149 IPC. On 5-1-1996, when the petitioner-complainant was in his house, the other family members of the respondents 2 to 6, who are police officers and businessmen of Delhi, trespassed into the house and conspired to commit dacoity and high handedly and under threat, they took cash of rs. 3,00,000/- belonging to the petitioner. It is stated that the petitioner had withdrawn the said amount from the State Bank of India, adilabad Branch from Account No. SSI-67, which stands in the name of Parik Ginning factory, Adilabad, and that there were in all 60 bundles of currency notes of Rs. 50/- denomination and that respondents 1 to 6 also took away important ledgers and other registers from, the custody of the petitioner with force and coercion. It is stated that the petitioner informed the same orally to the adilabad Town Police Station and subsequently lodged a complaint, and after waiting for more than three months he filed a private complaint before the Court alleging that Adilabad Town Police did not take any steps to investigate the matter. Hence, he filed a petition to record his statement under section 202 Cr. P. C. and to commit the matter to the Court of Sessions for trial. Since the adilabad Town Police did not file any final report, a notice was issued to the Police to file final report, and after issuing notice, final report was filed on 5-12-1996 stating that complaint was false and therefore, Police sought to close the case. It is stated that subsequently the Court recorded the statements of complainant-Abdul Salam, his mother Bilquis Banj, Gaffar Khan, who was watchman of M/s. Abu Bhaker Industries and directed the complainant to file Bank pass books for himself and his father for perusal and on 18-12-1996 the complainant filed pass books for consideration. It is stated that subsequently the Court recorded the statements of complainant-Abdul Salam, his mother Bilquis Banj, Gaffar Khan, who was watchman of M/s. Abu Bhaker Industries and directed the complainant to file Bank pass books for himself and his father for perusal and on 18-12-1996 the complainant filed pass books for consideration. ( 3 ) BASING on the above allegations, the court framed the following point for consideration:"whether the case can be taken on file tor the offence charged against the accused?" ( 4 ) THE Court below, basing on the final report of the Police and the evidence, both oral and documentary, disbelieved the version of the petitioner that the accused nos. 1 to 6 have committed dacoity and robbed Rs. 3,00,000/ -. ( 5 ) THE main allegation of the complainant is that A-2 to A-6 illegally trespassed into the house of complainant on 5-1-1996 at 8-00 a. m. followed by Mr. Bheemanna, Police constable of Adilabad town Police Station. It was further alleged that A-2 to A-6 took away Rs. 3,00,000/- in cash which belong to the complainant by forcing the complainant to open the almariah and also seized account books from Adubhakar Industries which belong to his father and since Police did not take any action on the written complaint given by him on 8-1-1996, he filed a private complaint on 3-4-1996. ( 6 ) IN this case, three witnesses, who are examined, are interestedwitnesses. The police also recorded the statement of mr. Rangachary, Branch Manager, on 20-4-1996. The Branch Manager, deposed that on 3-1-1996 the complainant herein had withdrawn an amount of Rs. 3,00,000/- from his account in Rs. 50/- denomination and on the same day the complainant herein deposited Rs. 1,50,000/- in the account of abubakar Industries pertaining to his father abdul Sattar. The amount deposited in Abdul sattar s account was also in Rs. 50/- denomination. Therefore, the Court below disbelieved the statement of Abdul Salam- the complainant herein that he had brought rs. 3,00,000/- from the Bank on 3-1-1996. ( 7 ) FURTHER, the final report filed by the police reveal that Delhi Police came to adilabad town Police Station while investigating a case in Cr. No. 246/95 under section 4201. P. C. against the complainant s father and Muneem Iqbal alleging that they have cheated A-1 and A-2 in this case to a tune of Rs. 7,00,000/ -. ( 7 ) FURTHER, the final report filed by the police reveal that Delhi Police came to adilabad town Police Station while investigating a case in Cr. No. 246/95 under section 4201. P. C. against the complainant s father and Muneem Iqbal alleging that they have cheated A-1 and A-2 in this case to a tune of Rs. 7,00,000/ -. The statement of Gafar khan under Section 161 Cr. P. C. reveal that delhi Police seized records under cover of panchanama, but he did not speak about this panchanama before the Court below. When it is clear that only Rs. 1,50,000/- was taken to the house by the complainant, the allegation that A-2 to A-6 committed dacoity of rs. 3,00,000/- has no substance, and under those circumstances, the Court below dismissed the complaint filed by the complainant and held that there are no grounds to proceed against A-1 to A-6. ( 8 ) THE learned Counsel for the petitioner contended that the learned Magistrate should have seen that Abubaker Industries is altogether different unit and from the mere fact that Rs. One and half lakh was deposited in that account, does not mean that the complainant did not bring the amount withdrawn by him to his house and that the learned Magistrate did not even seek a clarification from the complainant on that issue and he should not have dismissed the complaint on seeing the pass books, which the complainant was asked to produce. It is further submitted that the Courtbelow erred in comparing the sworn statements of the witnesses with the statements recorded by the Police under Section 161 Cr. P. C. and then disbelieving the complainant s case. The learned Counsel further submits that when serious allegations are made against A-l and a-2, the Court below should not have dismissed the complaint at the threshold itself. P. C. and then disbelieving the complainant s case. The learned Counsel further submits that when serious allegations are made against A-l and a-2, the Court below should not have dismissed the complaint at the threshold itself. ( 9 ) SECTION 202 of the Code of Criminal procedure contemplates that any Magistrate on receipt of a complaint of an offence which he is authorized to take cognizance or which has been made over to him under Section 192 may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself, or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. ( 10 ) AS can be seen from the above provision of law, the Magistrate on receipt of complaint of an offence or any complaint made over to him, under Section 192, he can take cognizance of the said complaint, if he thinks fit and postpone the issue of process against such accused. Further, he can either inquire into the matter by himself or direct an investigation to be made by any police officer or by such other person, as he thinks fit, to decide as to whether there are sufficient grounds for proceeding against the said person. Evidently, power is conferred on the magistrate, on receipt of complaint of an offence under which he is authorized to take cognizance or the complaint which is made over to him, if he thinks fit, he can postpone the issuance of process against the accused and he can either inquire into the offence by himself or direct a police officer or any other person, as he thinks fit, to investigate into the complaint to decide whether there is sufficient ground to proceed in the matter. ( 11 ) TO this provision of law, there is a proviso which mandates the Magistrate that no such direction for investigation shall be made where it appears to him that the offence complained of is triable exclusively by the court of Session or that where the complaint has not been made by a Court unless the complainant and the witnesses present, if any, have been examined on oath under section 200. Before taking cognizance of the offence described above, the Magistrate may, if he thinks fit, take evidence of witnesses on oath. It further mandates that where it appears to the Magistrate that the offence complained of is triable exclusively by the court of Session, he shall call upon the complainant to produce all the witnesses and examine them on oath. ( 12 ) SECTION 202 contemplates that the magistrate can take cognizance of an offence complained of by any private individual or on a complaint made over to him under section 192. Before taking cognizance, the magistrate if he thinks fit, postpone issuance of process against the accused with a view to conduct enquiry by himself or cause the investigation to be done by any police officer to decide as to whether there are sufficient grounds to proceed against the accused. But he cannot take cognizance of the offence complained of, if that offence is exclusively triable by Court of Session or where the complaint is not made by the Court unless complainant and the witnesses are examined on oath under Section 200. The Magistrate can also take evidence of the witnesses, if he thinks fit, on oath. Accordingly, to satisfy the above said provisions of law, on receipt of the complaint from the petitioner, he directed the Police Officer to investigate into the matter. After receipt of final report from the policer Officer, he also examined the witnesses of the complainant to know whether there is sufficient ground to take cognizance of the offence and proceed against the accused. The Court below also examined the Branch Manager of the Bank, who is the proper authority to speak about the truth or otherwise of the Banking transactions. Though the petitioner withdrawn an amount of Rs. 3,00,000/- from his account in Rs. 50/- denominations, the same denomination of rupees one lakh fifty thousand was deposited on the same day in his father s account. Therefore, it cannot be said that the Court below without satisfying itself has dismissed the complaint. Moreover, it is for the lower court to take cognizance or not. 3,00,000/- from his account in Rs. 50/- denominations, the same denomination of rupees one lakh fifty thousand was deposited on the same day in his father s account. Therefore, it cannot be said that the Court below without satisfying itself has dismissed the complaint. Moreover, it is for the lower court to take cognizance or not. ( 13 ) OVER all appreciation of the entire statement of the witnesses cited by the petitioner and the Branch Manager along with the report of Police Officers, the learned magistrate was satisfied that there is no ground to proceed against the accused and he has given cogent reasons to satisfy the provisions of Section 203 of the Code. Therefore, it cannotbe contended that before dismissing the above complaint, the magistrate should have sought clarification on the issue of drawing an amount of Rs. 1. 5 lakhs and deposited Rs. 50,000/- in the account of father and it cannot be said that the Court cannot compare the sworn statement with the statements recorded under Section 161 of the Code of Criminal procedure and that when there are serious allegations made against A-1 and A-2, the court below should not have dismissed the complaint at the threshold. The learned magistrate, before taking cognizance and proceeding against the accused, to know whether there are sufficient grounds to proceed against the accused has directed the police officer to investigate into the matter and on receipt of report from the police officer and on recording the sworn statements of the witnesses, on oath, satisfied that there is no sufficient ground to proceed against the accused on the basis of the complaint filed by the petitioner and gave cogent and convincing reasons, as required under section 203 of the Code of Criminal procedure. Therefore, I do not see any reason to interfere with the impugned order. The criminal Revision case accordingly fails and is dismissed.