2020 (12) TMI 380 - HC - Indian Laws

Dishonor of Cheque - Misappropriation of fund - validity of registration of a FIR under Section 156(3) of the Code of Criminal Procedure - non-application of mind - HELD THAT - The Hon'ble Supreme Court in the case of MRS. PRIYANKA SRIVASTAVA AND ANOTHER VERSUS STATE OF UP. AND OTHERS 2015 (5) TMI 47 - SUPREME COURT has held that an application under Section 156(3) of the Code of Criminal Procedure seeking a direction for registering an FIR must be supported by an affidavit. The Hon'ble Supreme Court in the said judgment has further held that in a routine manner the complaint cannot be sent by exercising jurisdiction under Section 156(3) of the Code of Criminal Procedure for registering an FIR. This exercise of power requires application of mind. The Hon'ble Supreme Court further has held that there should be prior application of Section 154(1) and 154(3) of the Code of Criminal Procedure while filing a petition under Section 156(3) of the Code of Criminal Procedure. In the instant case, the provisions of law have not been followed by the Magistrate. In a most mechanical manner, without application of mind the Magistrate has referred the complaint under Section 156(3) of the Code of Criminal Procedure for registering a First Information Report. There is no compliance of Section 154(1) and Section 154(3) of the Code of Criminal procedure in the instant case - Further, from the complaint, it is found that the complainant had prayed to take cognizance of the offence under Sections 420, 403, 406 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act and to proceed against the accused persons. No where the complainant had prayed to refer the complaint under Section 156(3) of the Code of Criminal Procedure. Thus, the order of the Court passed under Section 156(3) of the Code of Criminal Procedure is absolutely bad and is hereby set aside. Court below is directed to proceed with the complaint case being in terms of Chapter XV of the Code of Criminal Procedure - criminal miscellaneous petition stands disposed of.

Summary

Issues:
1. Validity of referring a complaint under Section 156(3) of the Code of Criminal Procedure for registering a First Information Report.
2. Compliance with legal procedures and requirements for initiating criminal proceedings.
3. Allegations of misappropriation of funds and dishonoured cheques leading to criminal charges.
4. Necessity of affidavit for applications under Section 156(3) of the Code of Criminal Procedure.
5. Jurisdiction of the Magistrate in referring complaints for FIR registration.
6. Consequences of non-compliance with statutory provisions in criminal proceedings.

Analysis:
1. The petitioners sought to quash an order and FIR related to a case involving offenses under Sections 420, 406, 403/34 of the Indian Penal Code. They contended that the referral of the complaint under Section 156(3) of the Code of Criminal Procedure was improper as the complaint lacked an affidavit, citing a Supreme Court judgment for support.

2. The State and the opposite party argued that the offenses were evident from the FIR, alleging misappropriation of funds and dishonoured cheques. However, they acknowledged that the orders related to the complaint and cognizance were cryptic and lacked clarity.

3. The Magistrate endorsed the registration of an FIR under Section 156(3) based solely on a one-line reference without an affidavit. The judge noted that the Supreme Court mandates affidavits for such applications and requires a thoughtful exercise of power, which was absent in this case.

4. The judgment emphasized the importance of following procedural requirements, specifically the need for prior application under Section 154(1) and 154(3) of the Code of Criminal Procedure before invoking Section 156(3). The failure to adhere to these steps rendered the Magistrate's order invalid.

5. Consequently, the court set aside all related orders, including the one taking cognizance, as they were deemed unsustainable due to procedural lapses. The judgment also referenced a previous case to support the decision to invalidate the orders based on non-compliance with legal provisions.

6. In conclusion, the court directed the lower court to proceed with the complaint case in accordance with Chapter XV of the Code of Criminal Procedure, ensuring proper adherence to statutory requirements and procedural fairness in the ongoing criminal proceedings.