JUDGMENT : 1. Heard learned counsel Shri F.T. Mirza, for the applicants, learned counsel Shri R.D. Bhuibhar for non-applicant no.2 and Shri Indranil Damle, learned A.P.P. for State-non-applicant no.1 in extenso. 2. By the present application under Section 482 of the Code of Criminal Procedure, the applicants who are the accused persons in Regular Complaint Criminal Case No.14/2004 on the file of learned Judicial Magistrate First Class, Kelapur are praying for quashing of said complaint, so also seeking quashment of the order passed by learned Judicial Magistrate First Class, Kelapur with the order passed by learned Additional Sessions Judge, Pandharkawada (Kelapur) in Criminal Revision No.40/2004. 3. As per the contentions of the learned counsel for the applicants, the complaint as filed against the present applicants is nothing but an abuse of process of law. He submits that the complaint in question is nothing but is an counter blast to the complaint filed against non-applicant no.2 and his wife under Section 420 of the Indian Penal Code. He also submits that, the order of issuance of process is erroneous in law as much as the learned Magistrate has not followed the scheme as envisaged in Chapter XV strictly. He relied on decision of Hon'ble Apex Court reported in Vadilal Panchal versus Dattatraya Dulaji Ghadigaonkar and another, AIR 1960 SC 1113 so also the reported case of law laid down by this Court reported in Captain Lance Irwin Lobo versus Ismail D'Souza @ Angelo Ismail De Souza and another, 2007 ALL MR(Cri)623. 4. Per contra, the learned counsel for non-applicant no.2 submits that the learned Magistrate before issuing the order of process has considered the statements recorded by the police officer which were recorded by him as per the directions given by the learned Magistrate and thereafter he being satisfied has issued process. 5. He makes reliance on the case of M/s India Carat Pvt. Limited vs. State of Karnataka and another, reported in AIR 1989 SC 885 and prayed for dismissal of the present application. 6. In order to appreciate the aforesaid contentions it would be useful to refer certain facts which are in fact not disputed at all by both the parties. 7. The applicants herein are the Government employees and their better halfs working in different departments including Revenue, Forest. So also the non-applicant is working as an employee of Revenue Department of the State of Maharashtra. 7. The applicants herein are the Government employees and their better halfs working in different departments including Revenue, Forest. So also the non-applicant is working as an employee of Revenue Department of the State of Maharashtra. A firm by name Shivalay Builders was formed by Smt. Vanita Ramesh Zade, the wife of the non-applicant no.2 and one Smt. Anita Kishor Pohankar. Kishor Pohankar is also one of the employees of Forest Department. This Shivalay Builders flouted a scheme. As per the said scheme, Shivalay Builder was to construct two types of tenaments. One 593 square feet constructed area on 1614 square feet of land and price of the said tenement was fixed as Rs.2,99,900/-. The other type of tenement was to be constructed on 1937 square feet of land having 841 square feet of constructed area and price was fixed Rs. 4,34,000/-. 8. It is also not in dispute that the present applicants with some other prospective purchasers entered into an agreement of sale with Shivalay Builders. It is also not in dispute that on different dates different amounts were paid by them as per the tenements they agreed to purchase. The receipt of the amount by Shivalay Builders is not at all disputed by the non-applicant no.2. It appears that the dispute started in between Shivalay Builders and the purchasers of the tenements. That resulted into filing of R.C.S. No. 89/2003 by Smt. Vanita Zade and Smt. Anita Pohankar, the partners of the partnership firm against the present applicants and others. The suit was for perpetual injunction. The prayer that was made in the said suit was that the defendants be restrained perpetually from taking the possession of suit property, unless and until there is full payment of agreed amount. It is not in dispute that plaintiffs in the said suit were not permitted to withdraw the said suit as their application was for the same was rejected. Not only that, said suit was disposed of for not paying the requisite court fees. It is also not dispute that no further proceedings were carried by the plaintiffs to challenge the said order. 9. Not only that, said suit was disposed of for not paying the requisite court fees. It is also not dispute that no further proceedings were carried by the plaintiffs to challenge the said order. 9. Different notices were given by the applicants and others against Shivalay Builders right from 2000 since the Shivalay Builders failed to follow the schedule of the construction and failed to hand over the possession of the tenements which were agreed to be purchased by the prospective purchasers though the amount was paid. Ultimately, the proceedings were initiated before the learned District Consumer Dispute Redressal Form, Yavatmal. Some of the complaints were filed by some of the applicants also. Those complaints were heavily contested not only by the proprietor of Shivalay Builders but also by the present non-applicant no.2 and Kishor Pohankar, the husband of Smt. Anita who were parties to the said proceedings. The learned forum by common order on 4/5/2005 partly allowed the complaints by giving various directions. Though the directions were also given against the present non-applicant no.2 for the reasons best known to the non-applicant no.2 neither the non-applicant no.2 or the partners of Shivalay Builders filed statutory appeal before the appellate authority namely State Commissioner. A complaint was also filed by present applicant no.10 Chandrakant Gopalrao Uppalwar against non-applicant no.2 Ramesh Shrawan Zade, Kishor M.Pohankar, Smt. Vinita Ramesh Zade, Sau.Anita Kishore Pohankar and Bharat Narayan Borele. The said complaint was registered as Criminal Complaint Case No.15/2004. The learned Magistrate after recording verification statement of the complainant and also perusing the evidence of witness no.2 found that case for the offence under Section 420 of the Indian Penal Code is made out and therefore vide order dated 25/8/2004 issued process against non-applicant no.2 and others for the offence under Section 420 of the Indian Penal Code only. It is reported to this Court by both the learned counsels that the said order of issuance of process was not challenged by non-applicant no.2 and complaint is still pending on the file competent criminal Court. 10. Be that as it may, in the meanwhile a complaint was filed by the non-applicant no.2 on 17/1/2004 in the Court of learned Judicial Magistrate First Class, Kelapur against the applicants and others. 10. Be that as it may, in the meanwhile a complaint was filed by the non-applicant no.2 on 17/1/2004 in the Court of learned Judicial Magistrate First Class, Kelapur against the applicants and others. According to complainant on 12/11/2003 at 4.00 p.m. when complainant Ramesh was discharging his work at his office one Pravin Prakash Atram informed that 10-12 persons and some women came to his house and he is being called. Therefore, he alongwith Kishor Pohankar went to the house at that time, the accused persons were armed with deadly weapons and they were under the influence of liquor. AS per the complainant accused no.1 Naresh Wamanrao Raut, accused no.2 Sunil Istari Burande, accused no.3 Chandrakant Ullawa and accused no.4 Raghunath Ziblaji Moharle demanded the keys of the houses built on late Narayanrao Borele Nagar Karmachari Vasahat however, as per the complaint, complainant refused to give keys since there was a dispute in respect of the payment of money. That time, according to complainant, abusive words were used and they damaged the house. The said complaint was registered as Regular Complaint Criminal Case No.14/2004. 11. On 23/1/2004 verification of the statement of complainant was recorded. On 18/6/2004, learned Magistrate passed an order thereby sending the complaint for investigation under Section 202 of the Code of Criminal Procedure to P.S. Pandharkawda. In pursuance to the directions the police station officer Pandharkawda recorded the statements and submitted report on 13/9/2004. According to investigating officer no such offence took place. He also pointed out by drawing panchnama that nothing was damaged in the house of the complainant. The learned counsel for non-applicant no.2 was right making in submission that merely because a negative report is filed by the police officer the learned Magistrate is not bound to accept such negative report. It is for the learned Magistrate either to accept or reject the said report. However, if the learned Magistrate disagree with the report he has to record the reasons as to why the Magistrate is not accepting the report. 12. It is for the learned Magistrate either to accept or reject the said report. However, if the learned Magistrate disagree with the report he has to record the reasons as to why the Magistrate is not accepting the report. 12. It appears that the learned Magistrate on 11/10/2004 considered the report so also considered the statement of the complainant Ramesh and statements recorded by the investigating officer of one Smt. Vanita Ramesh Zade, Pravin Prakashrao Aatram and Kishor Madhukarrao Pohankar which were recorded by the investigating officer in the year 2004 and passed an order thereby issuing process against the applicants under Section 427,448 and 506 r/w Section 34 of the Indian Penal Code. As observed above, in the opening paragraph revision carried against the said order was also dismissed. 13. Chapter XV of the Code of Criminal Procedure deals with “Complaint to Magistrates”. The complaint has to be filed under Section 200 of Code of Criminal Procedure. Section 202 of Code of Criminal Procedure deals with postponement of issue of process. Under this while exercising the powers the Court himself can make an inquiry and can extend the matter to police officer. Section 203 of the Code of Criminal Procedure deals with dismissal of complaint. Section 203 reads as under: “If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation(if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.” Here it would be useful to refer to the observations of the Hon'ble Apex Court in Vadilal Panchal case (cited supra) in paragraph no.9. “The general scheme of the aforesaid sections is quite clear. Section 200 says inter alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. “The general scheme of the aforesaid sections is quite clear. Section 200 says inter alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of progress. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process.” 14. So also, the observations of this Court in Captain Lance Irwin Lobo case (cited supra) and relevant portion is reproduced herein under: “A conjoint reading of Section 203, 204, Cr.P.C. shows that process is to be issued after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under Section 202. The recording of the statement on oath of complainant under Section 200 Cr.P.C. is not an empty formality. Commonly it is nicknamed as verification. To verify means to establish the truth. The recording of the statement on oath of complainant under Section 200 Cr.P.C. is not an empty formality. Commonly it is nicknamed as verification. To verify means to establish the truth. In other words, verification is done in order to ascertain as to what is pleaded by the complainant is true or not. It is with a view to separate chaff from the grain as many a times complaints do contain unfounded allegations and it is the duty of the Court to ensure that what is stated in the complaint is also stated by the complainant on oath and it is only then that based on such statement that process can be issued.” 15. In the present case, it is not in dispute that only statement of complainant was recorded on oath by the learned Magistrate at initial stage, however after having the said statement on oath the learned Magistrate was not satisfied and therefore, he directed for conduction of inquiry under Section 202 of the Code of Criminal Procedure. The investigating officer recorded the statements of various witnesses. According to the investigating officer their statements does not disclose the occurrence of any offence. The learned counsel invited my attention to page no.77 of the compilation which is in the nature of the chart which shows that which witnesses named the names of the applicants. The said aspect is also not disputed. From the aforesaid page, it is clear that all the witnesses are not stating the names of all the applicants. Same names are being seen from the statements of same witnesses. In my view, much importance cannot be given to this. In my view, what is important is that learned Magistrate has relied upon the statements of these witnesses-persons whose statements are recorded under inquiry under Section 202 of Code of Criminal Procedure. It is not the case of the non-applicant no.2 that after the statements of the witnesses were recorded by the investigating officer those persons were presented by the non-applicant no.2complainant in his complaint and their statements on oath were recorded by the learned Magistrate. Thus, learned Magistrate has relied upon the statements of witnesses which were not on oath. In my view, here the learned Magistrate has committed mistake in law in view of provisions of Section 203 of the Code of Criminal Procedure. Thus, learned Magistrate has relied upon the statements of witnesses which were not on oath. In my view, here the learned Magistrate has committed mistake in law in view of provisions of Section 203 of the Code of Criminal Procedure. Section 203 of the Code of Criminal Procedure clearly shows that the statement of complainant-witness has to be on oath and after considering their such statements if no case is made out the complaint has to be dismissed. 16. At this stage, I would like to refer the case cited by learned counsel for non-applicant no.2 in M/s India Carat Pvt. Ltd. (cited supra) is distinguishable from the facts of the present case. Here learned Magistrate has faulted in following the mandate of law, in my view, the present application is required to be allowed and the Regular Complaint Criminal Case No.14/2004 pending on the file of learned Judicial Magistrate First Class, Kelapur stands quashed qua present applicants only. Rule is made absolute.