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Telangana High Court · body

2024 DIGILAW 730 (TS)

Cellix Bio Pvt. Ltd. v. State of Telangana

2024-09-11

K.SUJANA

body2024
ORDER : This Criminal Petition is filed aggrieved by the order dated 16.09.2023 in Crl.M.P.No.4009 of 2023 in Cr.No.181 of 2023 of P.S.CCS, DD, Hyderabad. 2. The petitioners herein are accused Nos.1, 2 and 6 (A.1, 2 and 6). The 1st petitioner is a registered company, 2nd petitioner is the Managing Director of A.1-company at the relevant time and 3rd petitioner is the wife of 2nd petitioner. For the sake of convenience the petitioners hereinafter referred to as A.1, A.2 and A.6. 3. A.1 is a Pharmaceutical Drug Design and Development company. A complaint was filed by the 3rd respondent/defacto complainant with the Station House Officer, Central Crime Station, Basheerbagh, Hyderabad against six accused including the petitioners, which was registered as Cr.No.181 of 2022 under Sections 406 and 420 r/w.Section 34 of Indian Penal Code (for short ‘I.P.C’). 4. The brief facts of the case are that the 3rd respondent is the founder of U.S. based company and in the year 2018, A.2 approached him seeking investment in A.1-Company at Hyderabad for developing various medical solutions for various diseases. Accordingly, the 3rd respondent invested Rs.45,01,60,000/- in A.1-company. In the said process, A.2 introduced A.3, A.4 and A.5 as partners to the 3rd respondent. The 3rd respondent felt that the petitioners and other accused were not being honest as they did not allow him to inspect the financials and on suspicion A.2 issued two cheques for an amount of Rs.2,50,00,000/- to the 3rd respondent and when the said cheques were presented, they were bounced. Later A.2 paid the cheque amount. Basing on the above facts, complaint was lodged and after thorough investigation, police filed final report closing the case as civil in nature. It is also stated that no documentary evidence was furnished by the complainant to the police. 5. Aggrieved by filing the final report, the 3rd respondent filed a protest petition before the XII-Additional Chief Metropolitan Magistrate, Hyderabad, which was taken on file as Protest Petition No.4009 of 2023. The 3rd respondent requested the Court to direct further investigation in Cr.No.181 of 2022. By order 16.09.2023, the trial Court allowed the petition and ordered for further investigation observing that the material on record was insufficient to take cognizance, and directed the same police who filed final report to investigate and to file report. 6. The 3rd respondent requested the Court to direct further investigation in Cr.No.181 of 2022. By order 16.09.2023, the trial Court allowed the petition and ordered for further investigation observing that the material on record was insufficient to take cognizance, and directed the same police who filed final report to investigate and to file report. 6. Heard Sri V.Pattabhi, learned Senior Counsel appearing for Sri Ch.Jagannatha Chary, learned counsel for the petitioners, Sri S.Ganesh, learned Assistant Public Prosecutor appearing for respondents 1 and 2 and Sri K.Satish Srinivas, learned counsel appearing for respondent No.3. 7. The contention of learned counsel for the petitioners is that a Magistrate acting under Section 190 Cr.P.C, having taken cognizance on a complaint of an offence, then proceeds to have power under XV of the Code dealing with complaints to Magistrate, which is having under Sections 200 to 203. Section 200 Cr.P.C, deals with examination of the complainant and under this section, the Magistrate shall examine both the complainant and the witnesses present which is compulsory and after acting under Section 200 Cr.P.C, if in his opinion there is sufficient ground for proceeding, by virtue of the provisions of Section 204 Cr.P.C, he will issue process summons or warrants as the case may be. But in cases where the accused stays beyond the area which he exercises his jurisdiction, Section 202 Cr.P.C, comes into picture. Section 202 of Cr.P.C, is a post-cognizance provision and only examination of complainant and witnesses on oath under Section 200 Cr.P.C, then the question of Section 202 arises. 8. The scope or power of a Magistrate to give a direction to the police under Section 202 of Cr.P.C, to investigate is only for limited purpose of deciding whether or not there is sufficient ground for proceeding, but the trial Court totally misunderstood the scope and reach of Section 202 of Cr.P.C. On one hand, having stated that the trial Judge has not taken cognizance, grossly erred in using his powers and directed the police to investigate the case under Section 202 of Cr.P.C. There is no discussion about final report filed by the police and no discussion about any material on record for him to come to conclusion that the final report is not proper for him to take cognizance of the case. 9. 9. The further contention of learned counsel for the petitioners is that based on the order of Magistrate, A.2 was summoned by ACP, CCS, Hyderabad and he was confronted with the complainant for hours together and inspite of A.2 explaining and demonstrating by material and facts as to how there is no justification for the allegations of the 3rd respondent, the 2nd respondent failed to listen what A.2 was pleading and took action. It is further contended that on 22.12.2023 when A.1-Company organized its Annual General Meeting, the constables of CCS picked up A.2 to the police station where, the concerned ACP by name Uma Maheshwar Rao (2nd respondent) started abusing him in filthy language, ill-treated him and humiliated A.2 and he was thrown into a cell in CCS and he was put in lock up, where he was made to stay overnight. On the next day morning A.2 was rudely pulled out of the cell and he was taken to the office of 2nd respondent where again he was abused in filthy language. When a Habeas Corpus petition was about to file, A.2 was released and after his release A.2 was served with Section 41-A Cr.P.C., notice. It is further contended that the Court acting under Section 202 Cr.P.C, can direct the police to investigate only for the limited purpose of deciding whether or not there is sufficient ground for proceeding and police cannot take the role of investigating officer under Section 156 and 157 of Cr.P.C. 10. It is further contended that the Court acting under Section 202 Cr.P.C, can direct the police to investigate only for the limited purpose of deciding whether or not there is sufficient ground for proceeding and police cannot take the role of investigating officer under Section 156 and 157 of Cr.P.C. 10. The further contention of learned counsel for the petitioners is that initially case is registered before the police and police filed final report stating that it is civil in nature, on filing of protest petition, instead of taking cognizance by the Magistrate, he directed the police to conduct further investigation which is not in accordance with law and without discussing anything about the final report filed by the police and without any material on record, the Magistrate cannot order for further investigation in a complaint filed under Section 200 of Cr.P.C. In usual course the Magistrate has to record the statement of complainant and any other witnesses, and if he is satisfied, he will take cognizance and directs for investigation under Section 156 (3) of Cr.P.C. In the present case, without examining any witnesses or complainant, the Magistrate straight away directed police for further investigation which is not in accordance with law. It is further contended that for no fault of A.2, he was abused by the police from the top to ACP levels at CCS, Hyderabad, as if he was a hard core criminal and as the Magistrate is not having any power to direct further investigation under Section 204 of Cr.P.C, the order of the trial Court is liable to be set aside. 11. On the other hand, the learned counsel for the 3rd respondent would submit that there is no illegality in the order of trial Court. The trial Court thoroughly discussed about the report filed by the police and relied on the judgment of Hon’ble Supreme Court in Sakiri Vasu Vs State of U.P and others, (2008) 2 SCC 409 wherein it was held that the Magistrate can direct the Police for further investigation. As such, there is no illegality in the order and there are no merits in the petition and requested this Court to dismiss this petition. 12. As such, there is no illegality in the order and there are no merits in the petition and requested this Court to dismiss this petition. 12. Having regard to the rival submissions made by both the counsel and the material on record, the first contention of learned counsel for the petitioners is that the trial Court without discussing about final report filed by the police ordered for investigation. As seen from the record, the order of trial Court does not show any discussion about the final report filed by the police. The trial Court relied on the judgment in Sakiri Vasu’s case (supra) wherein it is observed that the power of the Magistrate to order further investigation under Section 156 (3) of Cr.P.C, is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173 (8) of Cr.P.C and the Magistrate can order re-opening of investigation, even after the police submits the final report. 13. The trial Court also relied on the judgment of Hon’ble Supreme Court in Abhinandan Jha and others Vs Dinesh Mishra, 1967 SCC online SC 107 held that the Magistrate will have ample jurisdiction to give directions to the police under Section 156 (3) of Cr.P.C, to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3) of Cr.P.C. 14. The trial Court after going through the contents of complaint, found prima-facie case in respect of inducement and committed cheated by causing wrongful loss to the complainant in Crores of rupees. The trial Court also observed that the final report does not disclose any reason for coming to the conclusion as civil in nature, as such directed for further investigation. Except stating that the final report does not disclose the reasons for closing the case, there are no observations in the order on which aspect further investigation was necessary. As seen from the final report, the police collected some documentary evidence, and it is also mentioned that no documentary evidence is produced regarding allegation No.1 leveled against Kandula Sridevi. Except stating that the final report does not disclose the reasons for closing the case, there are no observations in the order on which aspect further investigation was necessary. As seen from the final report, the police collected some documentary evidence, and it is also mentioned that no documentary evidence is produced regarding allegation No.1 leveled against Kandula Sridevi. Further, neither she is a Director nor share holder of the company nor involved in financial transactions with M/s.Cellix Bio Private Limited Company; with regard to allegation No.2, as per the Board resolution shares were allotted to the complainant @ Rs.610/- per share and further with regard to allegation Nos.3 and 4 it is observed that there is an arbitration clause for settlement which was not resorted for non-realization of cheques for Rs.2.50 Crores, and the complaint itself shows that the accused already paid the amounts and for allegation No.5, no documentary evidence was submitted. The closure report shows the reasons for filing report. But the trial Court without going through the final report, directed the police for further investigation under Section 202 of Cr.P.C, whereas, Section 202 of Cr.P.C, is a post cognizance provision. Proviso in Section 202 of Cr.P.C, says that complainant and the witnesses have to be examined on oath under Section 200 of Cr.P.C. There is no such examination on record. The trial Court ordered for further investigation without following the procedure. Hence, the order of the trial Court is liable to be set aside and the matter has to be remanded to the trial Court to decide afresh. 15. Accordingly, the Criminal Petition is allowed and the matter is remanded back to the trial Court to decide the matter afresh by following the procedure. Miscellaneous petitions, pending, if any, shall stand closed.