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2007 DIGILAW 1433 (BOM)

Manisha w/o Madhukar v. State of Maharashtra

2007-10-04

C.L.PANGARKAR

body2007
ORAL JUDGMENT: Applicant accused seeks to quash the complaint case and the F. I. R. registered on the basis of the complaint at the directions of the Magistrate. 2. Facts of the case are as follows: Applicant was elected as a President of the Municipal Council Akot for the period 2001-06. Government had sanctioned vide its letter dated 01.06.1996 sumptuary allowance payable to the President of the Municipal Council. The amount sanctioned by the Government was Rs.10,000/-. The applicant accused was entitled to withdraw this amount since it was to be spent by her towards the entertainment of the guests. The applicant withdrew the said amount on 31.03.03. There after audit of the Municipal Council was conducted for the period 2001-03 on 07.12.03. A note was prepared by the auditor and auditor has taken objection with regard to withdrawal of the said amount vide No. 53. It is alleged by the non applicant-complainant that the present applicant accused committed misappropriation of Rs.10,000/- and she had not spent any amount what so ever for entertainment of the guests. The complainant, therefore, filed a criminal complaint case in the Court of Judicial Magistrate First Class under Section 409 and 420 of the Indian Penal Code. Along with the said complaint case the complainant also moved an application under Section 156(3)of the Code of Criminal Procedure. Learned Magistrate passed an order referring the complaint to the police authorities and directing them to register an offence and investigate it. Police accordingly registered an offence and later moved an application before the Magistrate for permission to arrest the accused-applicant. Being aggrieved by both these orders this application under Section 482 Criminal Procedure Code has been filed and the applicant, therefore, seeks to quash the criminal complaint as well as F. I. R. and the order directing her arrest. 3. I have heard the learned counsel Shri Mardikar for the applicant and Shri Mohta for the intervenor as well as Shri Sonare learned Additional Public Prosecutor. 4. Shri Mardikar learned counsel for the applicant-accused raised mainly two grounds for quashing the complaint and the F. I. R. First ground is that complaint itself was premature and secondly the procedure adopted by the Magistrate in directing the registration of F. I. R. and to investigate into the complaint after taking cognizance was illegal. 5. 4. Shri Mardikar learned counsel for the applicant-accused raised mainly two grounds for quashing the complaint and the F. I. R. First ground is that complaint itself was premature and secondly the procedure adopted by the Magistrate in directing the registration of F. I. R. and to investigate into the complaint after taking cognizance was illegal. 5. Before adverting to the first submission it would be necessary to mention a few admitted facts. Applicant-accused was the President of the Akot Municipal Council for the period 2001-06. Government had sanctioned a sumptuary allowance of Rs. 10,000/- to the President. The applicant had drawn that amount from the Treasury on 31.03.03. An audit of account of Municipal Council was conducted during the year 2003. Auditor had raised an objection during the course of the audit that expenditure of Rs. 10,000/- was not supported by the bills and vouchers. This was noted in para 53 of the Audit Report. Note says that this account and amount is kept under objection for want of bills and vouchers and until the bills and vouchers are tendered the expenditure would remain under objection. The note is dated 07.10.03. 6. It is in this backdrop that it is to be seen that if the complaint is premature as is contended. The audit report dated 07.10.03 reads as follows: But along with the drawal bill the voucher in respect of lunch to guests are not tendered, therefore, it is not certain if the amount was really spent for that purpose. Therefore, complaince should be done by tendering voucher of expenditure. Until then expenditure of Rs. 14,098/- would remain under objection. Bare reading of the note would show that this expenditure was put under objection for want of vouchers and compliance was directed to be made. In any case accused being the President was entitled to draw a sum of Rs.10,000/- towards the sumptuary allowance and it was payable to her. Only thing that was missing was voucher of expenditure. The auditor himself has observed that bills and vouchers should be filed towards the compliance and removal of objection and till then the expenditure would remain under objection. An inference of misappropriation could have been drawn only when the accused would have failed to tender the concerned vouchers within the time stipulated by the auditor. The auditor himself has observed that bills and vouchers should be filed towards the compliance and removal of objection and till then the expenditure would remain under objection. An inference of misappropriation could have been drawn only when the accused would have failed to tender the concerned vouchers within the time stipulated by the auditor. In fact it was necessary for the complainant to have contended in the complaint itself that within the time granted by the auditor there was no compliance of audit objection and, therefore, it could be said that amount is misappropriated. There cannot be an offence until conversion to own use is primafacie shown. Mere entrustment would not be enough in the instant case as she was as of right entitled to receive the amount. The use of the money for any other purpose than the purpose for which it was given must primafacie be shown. The non production of bill or voucher with the bill of drawal itself would not suggest that it is used for some other purpose or misappropriated. A rejoinder has been filed by the applicant accused to show that the bills and vouchers were submitted to the Chief Executive officer on 24.06.05. It is thus clear that there was a compliance of direction of the auditor. In the circumstances I find that the complaint was premature and did not disclose any offence. It was, therefore, liable to be quashed on that count. 7. Order directing registration of F. I. R. is also challenged as according to petitioner the procedure adopted by Magistrate was not proper. Shri Mardikar learned counsel submits that once the Magistrate applies his mind, he cannot revert to provisions of Section 156 of Criminal Procedure Code but must adopt the procedure in Chapter XV of the Criminal Procedure Code. He contended that Magistrate had in fact taken cognizance and then he sent the complaint under Section 156 to the Police. In the instant case the Magistrate passed the following order: Heard. Ld Counsel for the complainant. Read audit report and other information submitted by the applicant in writing vide document enclosed with the complaint. There appears to be substance in the audit report and complaint. Hence P. S. O. is directed to registered offence U/S 156(2) Cr. In the instant case the Magistrate passed the following order: Heard. Ld Counsel for the complainant. Read audit report and other information submitted by the applicant in writing vide document enclosed with the complaint. There appears to be substance in the audit report and complaint. Hence P. S. O. is directed to registered offence U/S 156(2) Cr. P. C. U/S 409 and 420 of I. P. C. against concern person and conduct thorough investigation accordingly effective as per Rules. Shri Mardikar submits that the fact that Magistrate heard counsel, read complaint and audit report clearly indicates application of mind and therefore taking of cognizance. I am unable to accept the view of the learned counsel. Simply because the Magistrate writes a few lines on having gone through the complaint and document, it cannot be said that he has taken cognizance. The Magistrate has two options open i.e. to proceed under Section 156(3) or 202. Unless therefore the Magistrate goes through the complaint, its nature and documents etc. it may not be possible for the Magistrate to decide whether he should proceed under Section 156(3) or 202. In a complaint of a complicated nature it may be that the Magistrate may think of proceedings under Section 156(3) and in a simple case he may himself hold an enquiry. He may have to decide if proper and regular investigation is necessary or a mere enquiry would do. It must be borne in mind that scope of investigation is wider. In an investigation the accused can be arrested, property can be recovered and evidence can be collected through different modes. While in an enquiry the only mode available is to record statements of witnesses which may not be enough in certain cases. For this reason there has to be an application of mind if action under Section 156(3) would be proper or Section 202 would be proper. Further it would also be necessary to go through the complaint and documents properly to find out if the complaint discloses an offence at all or not. Therefore, simply because the Magistrate has read the complaint, the document, it does not necessarily mean that he intended to proceed under Section 202 and that he has taken cognizance. My view is fortified by the decision of the Calcutta High Court which is approved by the Supreme Court in two decisions viz. R. R. Chari Vs. Therefore, simply because the Magistrate has read the complaint, the document, it does not necessarily mean that he intended to proceed under Section 202 and that he has taken cognizance. My view is fortified by the decision of the Calcutta High Court which is approved by the Supreme Court in two decisions viz. R. R. Chari Vs. The State of Uttar Pradesh (1951) S. C. R. 312 and Mohd. Yousuf Vs. Smt. Afaqjahan And Another 2006(1) Mah. Law Reporter 606. Observations of the Calcutta High Court which are quoted in Mohd. Yousuf's case are as under: What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so far the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. Thus when Magistrate applied mind to decide the course of action to be followed, that does not mean that he has taken cognizance. It is settled proposition now that cognizance can be said to be taken only when Magistrates proceeds to record verification statement. In the case at hand no verification statement is recorded. Supreme Court in Mohd. Yousuf's case further observed as follows: The clear position therefore is 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. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. The ratio therefore is that once complainant is examined cognizance is deemed to be taken and if the complainant is not examined no cognizance is said to be taken at all. Shri Mardikar learned counsel in support of his contention relied on following decisions: i) Bhagirathabai Rambhqukar Akotkar & Ors. Vs. State of Maharashtra & Anr. 2007 ALL MR (Cri) 1646; ii) Vijay Kirtilal Mehta Vs. State of Maharashtra 2007(1) B. Cri. C 72; iii) Nitin Jairam Gadkari Vs. State of Maharashtra and another 2004(4) Maharashtra Law Journal 419, iv) Harshadbhai C. Patel Vs. Indravadan P. Shah and another 1986(2) Crimes 185; v) Gulab Chand Upadhyaya Vs. State of U. P. & Ors. 2002(2) Crimes 488 and vi) Mohd. Abdulla Khan and others Vs. State of Bihar and another 2002 Criminal Law Journal 3875. So far as first decision is concerned it is a simple case of reverting to Section 156 even after taking the cognizance. It is held that once cognizance is taken Magistrate cannot go back to Section 156 at all. In that case complainant had examined himself, therefore action under Section 201 on merits was contemplated and not under Section 156. In the second case the Magistrate had not only gone through the complaint but had decided the course. He intended to recording of the verification statement. In that case complainant had examined himself, therefore action under Section 201 on merits was contemplated and not under Section 156. In the second case the Magistrate had not only gone through the complaint but had decided the course. He intended to recording of the verification statement. Hence he had certainly decided to proceed under Chapter XV and therefore it can be said in that case that he had taken cognizance. It is held that Magistrate has power to decide the course of action and complainant cannot insist which of the two modes the Magistrate should follow. I do not intend to discuss the other cases since I find that correct position of law is to be found in the decision of Calcutta High Court approved by the Supreme Court in Mohd. Yousuf's case. In view of the fact that I find that the complaint does not disclose an offence, complaint as well as FIR are both liable to be quashed. Application is allowed. The complaint and the FIR are therefore quashed.