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2012 (12) TMI 965 - SC - Indian LawsCheating - Swindling of amount - Non following of procedure by magistrate - Section 202 of the Code of Criminal Procedure - Held that - High Court took the view that prima facie the bare allegation of cheating did not make out a case against the accused for issuance or process under Section 418 of 420 of the I.P.C. Further, it was held that the C.J.M. did not follow the procedure laid down under Section 202 of the Cr.P.C. - The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. Amendment was not noticed by the C.J.M. Ahmednagar. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 of the Cr.P.C. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 of the I.P.C. - Matter remanded back - Decided in favour of Appellant.
Issues:
1. Allegations of cheating against the accused 2. Compliance with Section 202 of the Code of Criminal Procedure 3. Jurisdiction of the Chief Judicial Magistrate, Ahmednagar 4. Application of the amended Section 202 of the Cr.P.C. Detailed Analysis: 1. The complainant, a bank, lodged a complaint against the respondent for cheating by swindling a significant amount of money. The accused had obtained financial facilities from the bank based on false representations about his business and financial stability. Despite a settlement agreement, the accused failed to repay the dues and absconded to India, leading to legal action. The Chief Judicial Magistrate, Ahmednagar, issued a process against the accused under Sections 418 and 420 of the Indian Penal Code (I.P.C.) after obtaining sanction from the Central Government. 2. The respondent challenged the order before the High Court, arguing that the allegations did not constitute an offense and that the CJM did not follow the procedure under Section 202 of the Cr.P.C. The High Court agreed, emphasizing the need for an inquiry or investigation under Section 202, especially when the accused resided outside the CJM's jurisdiction. The High Court set aside the process issuance order due to non-compliance with Section 202. 3. The Supreme Court upheld the High Court's decision, stating that the CJM had not conducted the necessary inquiry or investigation as required by Section 202 before issuing the process. The duty of the Magistrate under Section 202 is to ascertain the truth of the allegations to determine if there are sufficient grounds to proceed. The Court highlighted the importance of the 2005 amendment to Section 202, which mandates an inquiry when the accused resides beyond the Magistrate's jurisdiction. 4. The Supreme Court found that the CJM had overlooked the amended Section 202 requirements and agreed with the High Court's decision. However, instead of quashing the complaint, the Court directed the Magistrate to pass fresh orders in compliance with Section 202 within two months. The matter was remitted to the Magistrate for proper consideration, emphasizing the need to follow the prescribed procedure under Section 202 of the Cr.P.C.
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