Case Note & Summary
The petitioner, M/s. Agarwal International, a partnership firm, filed a criminal complaint against respondents Frisco International Private Limited, its director Samir Goenka, and authorized representative Shashi Sehgal for offences under Section 420 read with Section 120B of the Indian Penal Code. The complaint alleged that the respondents agreed to supply goods worth Rs.13 lakh to the petitioner, and upon that representation, the petitioner made payment of Rs.13 lakh. However, the goods were never supplied. When the petitioner demanded delivery, the respondents claimed that the amount was adjusted against dues from one Mr. Inder of M/s. Parul Creation, with whom the petitioner had no connection. The petitioner contended that the respondents cheated him by inducing payment without any intention to supply goods. The complaint was filed on 15 July 2005, and the verification statement was recorded. The learned Magistrate, 29th Court, Dadar, by order dated 2 March 2006, directed the N.M. Joshi Marg Police Station to investigate under Section 202 of the Code of Criminal Procedure, 1973 (CrPC). The police submitted a report stating that the respondents were located within the jurisdiction of MIDC Police Station, Thane, and recommended that MIDC Police Station investigate. By order dated 30 January 2008, the Magistrate directed MIDC Police Station to investigate under Section 202 CrPC. The MIDC Police Station submitted a report stating that a prima facie case was made out against the respondents and recommended issuance of process. Despite this, the learned Magistrate, by the impugned order dated 30 April 2009, refused to issue process and dismissed the complaint. The petitioner challenged this order by way of a criminal writ petition before the Bombay High Court. The High Court examined the material on record, including the complaint, verification statement, documents, and the police report. The Court noted that the Magistrate had not considered the police report or the evidence and had not assigned any reasons for rejecting the complaint. The Court held that the Magistrate's order was illegal and unsustainable. The High Court allowed the petition, set aside the Magistrate's order, and directed the Magistrate to reconsider the complaint and pass a fresh order in accordance with law, after considering the police report and other material. The Court clarified that it had not expressed any opinion on the merits of the case.
Headnote
A) Criminal Procedure Code - Issuance of Process - Section 202, 204 CrPC - Magistrate's Duty - The Magistrate must consider the police report and complainant's evidence to determine if a prima facie case exists for issuance of process. Failure to do so and rejection of complaint without assigning reasons amounts to illegality. (Paras 5-7) B) Cheating - Ingredients - Section 420 IPC - Prima Facie Case - Where the complainant alleges that the accused induced payment of Rs.13 lakh on false promise to supply goods and later claimed adjustment against a third party's dues, a prima facie case of cheating is made out. The Magistrate ought to have issued process. (Paras 3, 7) C) Criminal Procedure Code - Investigation under Section 202 CrPC - Police Report - The police report stating that a prima facie case is made out and recommending issuance of process is a relevant material that the Magistrate must consider before passing orders under Section 203 or 204 CrPC. (Paras 5-6)
Issue of Consideration
Whether the learned Magistrate was justified in refusing to issue process under Section 204 CrPC despite a police report under Section 202 CrPC indicating a prima facie case and the complainant's evidence supporting the allegations of cheating.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 30 April 2009 passed by the learned Magistrate, 29th Court, Dadar, and directed the Magistrate to reconsider the complaint and pass a fresh order in accordance with law, after considering the police report and other material on record. The Court clarified that it had not expressed any opinion on the merits of the case.
Law Points
- Section 202 CrPC
- Section 204 CrPC
- Section 420 IPC
- Section 120B IPC
- prima facie case
- issuance of process
- police investigation report
- judicial discretion
