Judgment :- 1. The petitioner is Accused No.2 in C.C.No.15 of 2011 on the file of the Judicial Magistrate No.I, Tirupur and he has come forward with the present petition to quash the proceedings as against him. 2. The facts of the case is: The respondent is the complainant in this case. He instituted the prosecution by way of private complaint before the Judicial Magistrate No.I, Tiruppur, under Section 200 of Cr.P.C., against three persons including the petitioner. The petitioner is the Branch Manager of the said company at Tiruppur. The first Accused is a company known as K.P.N. Speed Parcel Service Private Limited, Salem. The second Accused is the Branch Manager of the company at Tirupur. The third Accused is an Auto driver of the first Accused company. The first Accused is operating parcel service through transport service between Tiruppur and Chennai. 3. On 13.03.2010, 19.03.2010 and 24.03.2010 the complainant booked three consignments containing 37, 7 and 14 bundles of second quality banians for the purpose of delivering the same at Madras. The petitioner who was the Branch Manager of Tiruppur Branch of the company received the entire consignments. The consignments were actually handed over to the third Accused who in turn handed over the same to the petitioner. Since the consignments delivered on 13.03.2010 were not in turn delivered at Chennai, the respondent presented a complaint to Circle Inspector of Tiruppur North Police Station on 1.12.2010. Neither a case was registered nor any action taken by the police on the said complaint. Subsequently, the respondent filed the private complaint before the learned Judicial Magistrate No.I, Tiruppur alleging that all the three accused have committed offence punishable under Section 420 and 208 IPC. 4. On taking cognizance of the said offence on the said complaint vide C.C.No.15 of 2011, the learned Judicial Magistrate recorded the statement of complainant and also recorded the statement of witnesses. Thereafter, the learned Judicial Magistrate passed an order directing the Tirupur Noth Police to make investigation as provided under Section 202 of Cr.P.C. and submit a report within 15 days. Accordingly, the learned Judicial Magistrate forwarded relevant documents to the police. Awaiting investigation report from the police the learned Judicial Magistrate kept the case pending and after completing the investigation the Circle Inspector of Police submitted a report on 16.6.2011. Thereafter, the learned Judicial Magistrate ordered issue of summons to the accused. Accordingly, the learned Judicial Magistrate forwarded relevant documents to the police. Awaiting investigation report from the police the learned Judicial Magistrate kept the case pending and after completing the investigation the Circle Inspector of Police submitted a report on 16.6.2011. Thereafter, the learned Judicial Magistrate ordered issue of summons to the accused. It is at this stage the petitioner has come up with the present petition seeking to quash the proceedings. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the Respondent. 6. The contention of the learned counsel appearing for the petitioner is that the learned Magistrate after examination of witnesses P.Ws. 1 and 2, has taken cognizance of the complaint in C.C.No.15 of 2011. However, not satisfied with the evidence of P.Ws. 1 and 2, the learned Magistrate has called for a report from the concerned police under Section 202 Cr.P.C. Hence, he has no power to take the complaint on file and to order to issue of summons to the accused. 7. From the perusal of the complaint it is seen that the complainant has presented the complaint for non delivery of 37 bundles of second quality banians which was booked by him from Chennai to Tirupur though K.P.N. Speed Parcel Service Private Limited, on 13.03.2010. The learned Magistrate after examining P.Ws.1 and 2 has taken on file the said complaint in C.C.No.15 of 2011. Thereafter, called for a report from the concerned police and on receipt of the report from the police, passed an order to issue summons to the accused. 8. The only point raised for my consideration is the learned Judicial Magistrate, after recording the sworn statement of the complainant and the statement of a witness, has called for the report from the police under Section 202 of Cr.P.C. After receipt of the report from the police officer stating that the goods have been delivered by the third Accused, without any new materials, whether the Judicial Magistrate can pass an order to issue summons to the accused? 9. Order taking cognizance by a Magistrate under Section 190 Cr.P.C. is undoubtedly a judicial order which involves element of adjudication. On going through the complaint and documents filed therewith the Magistrate has two options before him. 9. Order taking cognizance by a Magistrate under Section 190 Cr.P.C. is undoubtedly a judicial order which involves element of adjudication. On going through the complaint and documents filed therewith the Magistrate has two options before him. He choose to refer the complaint to the police under Section 156(3) of Cr.P.C. for investigation or he apply his Judicial mind into the same to take cognizance of the Accused made out from the averments in the complaint and documents. Such application of judicial mind denotes the proceedings/or taking cognizable. On appreciation the learned Judicial Magistrate finds that there are offences which requires further proceedings the process of taking cognizance is completed. 10. After taking cognizance the learned Magistrate is required to record the statement of the complainant under Section 200 Cr.P.C. At that stage the learned Magistrate is satisfied that there are sufficient grounds to proceed he may proceed to issue process to the accused under Section 204 Cr.P.C. Instead, the learned Magistrate may proceed to further process of recording the statement of witnesses if any of the complainant under Section 202 Cr.P.C. 11. In an appropriate case after taking cognizance and after recording the statement of the complainant under Section 200 Cr.P.C. the learned Magistrate may order for investigation as provided under Section 202(1) Cr.P.C. On such direction issued the police officer shall thoroughly investigate and submit a report. On receipt of the report the learned Magistrate shall consider all the materials such as the complaint, the statement of complainant recorded under Section 200 Cr.P.C., the statement of witnesses recorded under Section 202(2) Cr.P.C., the report submitted by the investigating officer under Section 202(1) Cr.P.C. and other documents decide as to whether there are sufficient grounds to proceed further or not. In the event the learned Magistrate is of the opinion that there is no sufficient ground to proceed further, he is bound to dismiss the complaint under Section 203 Cr.P.C. On the contrary the learned Magistrate is of the opinion that there is sufficient ground to proceed further he shall issue process to the accused under Section 204 Cr.P.C. 12. With the above legal position let us now consider the facts of the instant case. As we have already seen on the complaint of the respondent the learned Magistrate had taken cognizance under Section 420 IPC. With the above legal position let us now consider the facts of the instant case. As we have already seen on the complaint of the respondent the learned Magistrate had taken cognizance under Section 420 IPC. Rightly thereafter he had recorded the statement of the complainant under Section 200 Cr.P.C. and the statement of the witnesses under Section 202 Cr.P.C., thereafter he had chosen to order investigation by the police as provided under section 202 Cr.P.C. and on completing the investigation the Investigating Officer had also submitted a report. Till this juncture in the proceedings of the learned Magistrate I find no infirmity. 13. Thereafter, the learned Magistrate issued summons has recorded as follows: “27.06.2011: Complainant present. Complainant side evidence closed. Perused the records and nature of offence. Prima facie case made out to proceed as against offencec i.e., accused. Hence issue summon to accused on P.O.P. u/s 209 of Cr.P.C. C/o. 24.8.11.” My considered opinion this order does not satisfy the legal requirements as elaborated in the earlier part of the order. There is no indication in that order the learned Magistrate had considered the report of the Investigating Officer. According to the leaned counsel for the petitioner the Investigation report was in favour of the accused as the Investigating officer had concluded that the goods have been delivered by the third Accused for which no LLR has been produced by the Investigating Officer, the allegation in the complaint are also false. Though the learned Magistrate is not bound by the conclusions in the report of the Investigating Officer, nevertheless he is bound to consider the same, as it is mandatory under Section 203 and 204 Cr.P.C. He cannot simply ignore the report of the Investigating Officer. The report of the Investigating Officer is also relevant and vital material, which should have been considered by the Judicial Magistrate. In this case the Judicial Magistrate has failed to do so. Anyhow, the order of the Magistrate passed under Section 204 Cr.P.C., which does not indicate the consideration of the report of the Investigating Officer and the opinion of the Magistrate thereon, and so the same is not sustainable. Therefore, I inclined to set aside the order of the Magistrate issuance of process to the accused. 14. In the result, the Criminal Original Petition is allowed. The order of the Magistrate issuance of process to the accused is setaside. Therefore, I inclined to set aside the order of the Magistrate issuance of process to the accused. 14. In the result, the Criminal Original Petition is allowed. The order of the Magistrate issuance of process to the accused is setaside. The case is remitted back to the Judicial Magistrate who shall consider all the materials especially the report of the Investigating Officer and pass appropriate order under Section 203 or 204 Cr.P.C. as the case may be.