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TMI Blog2025 (4) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... of the complaint petitioner that Respondent Nos. 2 to 7 had conspired and cheated it of crores of rupees. It is alleged that Respondent Nos. 2 to 7 induced the petitioner company to start a school at a piece of land admeasuring 17 acres at Kaushalpura, Bhopal, despite knowing that the permission for change of land use for the land in question would never be given by the Government of Madhya Pradesh. It is alleged that Respondent Nos. 2 to 7 misrepresented that Respondent No.2 was the owner of the said land, however, no such land existed in their name. 3.2. In the year 2010, a Joint Venture Agreement dated 11.07.2010 was executed between the parties to this effect as per which the petitioner was to pay Rs. 10 crores to the accused persons in various installments. It is alleged that Respondent Nos. 2 to 7 assured that the school will be built within eight to twelve months of signing of the agreement and that they would obtain the relevant approvals and sanctions in this regard. 3.3. It is alleged that the originally offered land was a piece of Agricultural land and the accused persons dishonestly deceived the complainant that they had applied for the land conversion, knowing fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs were also initiated by the accused persons claiming damages. 3.9. It is further alleged that as per the repayment schedule, a sum of Rs. 1 crore was due and the accused persons issued a cheque of the said amount to the complainant petitioner, which was dishonoured as well because the payment was stopped. In relation to the same, the petitioner initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881 against the accused respondents. 3.10. During correspondence, an amount of Rs. 1.5 crores was paid to the complainant in April, 2016. 3.11. When no action was taken on the complaint given by the petitioner to the Police Station Malviya Nagar, the complainant filed an application under Section 156 (3) of the CrPC against Respondent Nos. 2 to 7 alleging that they had caused wrongful gain to themselves and wrongful loss to the petitioner to the tune of Rs. 4,30,37,172/- by selling the property on which the petitioner had a charge and lien and that they had dishonestly induced the petitioner complainant to part with its hard earned money. 3.12. By order dated 19.05.2018, the learned Trial Court dismissed the application filed by the petitioner under Section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is not required. All the documents are in the possession of the complainant. Moreover, the conditions have been laid down in the agreement of loan entered into between the parties, no FIR is thereby warranted. Accordingly, application u/sec 156 (3) of Cr.P.C. is dismissed." (emphasis supplied) 3.13. The said order was challenged by the petitioner in Cr.Rev. 395/2018, which was dismissed by the impugned judgment. The relevant portion of the impugned judgment is as under: "Before proceeding further, it may be noted that the records of the case file reveal that though the application u/s. 156 (3) Cr.P.C. had been dismissed by the Ld. CMM, South, the case has been fixed for recording the statement of the petitioner u/s. 200 of Cr.P.C. Therefore, it is not as if all avenues of redressal have been closed to the petitioner. Be that as it may, the revision is considered on its merits. It is settled law that a revisionary court is empowered to reverse the finding of the trial court only when it reaches the conclusion that the finding of the trial court is perverse. The purpose of powers of revision is to set right patent defect or error. The jurisdiction cannot be invoked lightly. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proposition is accepted, then there can be no FIR where money is parted pursuant to an agreement, even if the intention of the party at the time of entering into the agreement is dishonest. 8. He submitted that in the present case, it is evident that it was the intention of the accused persons to cheat the complainant from the very start and the conspiracy to cheat the complainant started when it was offered a piece of land at Kaushalpura and induced the petitioner to enter into the Joint Venture Agreement. 9. He submitted that assistance of the police is required in the present case as original documents and title deeds are to be collected and custodial interrogation is also required. He submitted that the petitioner has found out that the proposed accused persons were never the owner of the land mentioned in the Joint Venture Agreement and the original documents of the various lands are with various authorities. 10. The learned senior counsel for Respondent Nos. 2 to 7 submitted that the present dispute arises out of a business transaction between the parties and the learned Courts below have rightly dismissed the application filed by the petitioner under Section 156 (3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CrPC as a substitute for initiating a second revisional challenge which is clearly barred under Section 397 (3) of the CrPC which reads as follows: "(3) If an application under this section has been made by any person either to the High court or to the Sessions Judge, no further application by the same person shall be entertained by the either of them." 18. At the outset, it is relevant to note that while it is settled law that a second revision cannot be filed in terms of the bar under Section 397 of the CrPC, the inherent power of this Court under Section 482 of the CrPC has a wide ambit and can be exercised in the interest of justice. The Hon'ble Apex Court, in the case of Krishnan v. Krishnaveni : (1997) 4 SCC 241, had observed as under: "8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant for filing a false FIR. xxx 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation." 20. It is equally true that that it is not mandatory for the Magistrate to direct registration of an FIR merely because allegations disclose the commission of a cognizable offence. A reference can be made to Section 156 of the CrPC, which reads as under : "156. Police officer's power to investigate cognizable case.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned." 21. Once a complaint/application un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Before the Magistrate can be said to have taken cognizance of an offence under Section 190 (1) (b) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under Section 200 and the provisions following that section. However, when the Magistrate had applied his mind only for ordering an investigation under Section 156 (3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence. 20. Taking cognizance is a different thing from initiation of the proceedings. One of the objects of examination of the complainant and his witnesses as me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates that upon receipt of the complaint on behalf of the petitioner, it was noted that the parties were engaged in business since the year 2006 and the Joint Venture Agreement dated 19.10.2010 to construct a school at Kaushalpura could not be finalized as the permission for change of land use was not granted. It was found that the deal in relation to Mayoor School could not be matured due to which the complainant demanded back the sum of Rs. 2.5 crores (the loan sum extended by the petitioner previously). It was found that Rs. 1.5 crores were paid back and suits were pending between the parties in relation to the recovery of the balance amount. It was found that no sign of any delivery or inducement and misrepresentation came to light and the case seemed to be civil in nature which essentially arose from breach of agreement. 27. It is argued on behalf of the petitioner that the learned Trial Court has erroneously observed that the dispute between the parties is of civil nature and noted that the recourse available to the complainant was to file a suit for specific performance or to initiate recovery proceedings. It is argued that the dispute between the parties involves an eleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid two provisions is not the same. The Magistrate has discretion either to direct registration of a case under Section 156 (3) or to conduct inquiry himself as the situation may warrant. This discretion is to be exercised by the Magistrate in his wisdom and having regard to the nature of material available. The direction under Section 156 (3) to register a criminal case and to investigate is to be exercised where the Magistrate is satisfied that prima facie a cognizable offence has been committed. On the contrary, where he thinks it necessary to conduct further inquiry before deciding whether he should proceed further in the matter, the matter has to be dealt with under Section 202. Mere allegation of forgery is not enough to require the Magistrate to pass the order under Section 156 (3). 12. It is further submitted that in the present case, the civil proceedings are pending between the parties where the question of genuineness or otherwise of the partnership deed is an issue. The process of criminal law cannot be used when a dispute is primarily of civil nature. Simultaneously initiation of criminal proceedings may be permitted where an offence is shown to have been committed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments required to substantiate the allegations are already in custody of the petitioner complainant. It was thus found that involvement of State machinery was not required. 34. For exercising powers under Section 156 (3) of the CrPC and directing the registration of an FIR, the Magistrate needs to ensure that a cognizable offence is disclosed from the allegations mentioned in the application and the essential elements of the alleged offences thereof are prima facie satisfied. Apart from the same, the Magistrate also needs to satisfy himself as to whether intervention of police is required and if the complainant will not be in a position to adduce the relevant evidence without assistance of police. 35. In the judgment delivered by this Court in the case of Skipper Beverages Pvt. Ltd. v. State : 2001 SCC OnLine Del 448, it was held as under : "7. It is true that Section 156 (3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of the complainant nor can be procured without the assistance of the police. It is thus not necessary that in every case where a complaint has been filed under Section 200 of the Code the Magistrate should direct the police to investigate the crime merely because an application has also been filed under Section 156 (3) of the Code even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, may be with the assistance of the Court or otherwise,. " (emphasis supplied) 37. In Gulab Chand Upadhyaya v. State of U.P. : (2002) 44 ACC 670, the Hon'ble Allahabad High Court held that: "22. But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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