TaxTMI 
TaxTMI 
2010 (7) TMI 1144
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....of transit bail and also recording of the fact that fraud has been played upon the Court and resultantly, non-bailable warrant was issued against respondent No. 1 in this appeal for his arrest and production before JMFC, Korba, Chhattisgarh. 3. The facts leading to the filing of these two appeals are: a) M/s SEPCO Electric Power Construction Corporation (in short "SEPCO") was engaged in erection of power plant at village Nariyara in Akaltara District Janjgir-Champa. SEPCO awarded constructional work to M/s SSVG Engineering Projects Private Limited (in short "SSVG") the appellants in appeal arising out of SLP (Crl.) No. 3267 of 2010 as per the terms and conditions of the contract settled between SEPCO and SSVG. The contract value of the work was Rs. 42,92,19,800/- and the work was to be completed within a period of two months. As per the terms, 50% of the value of the contract was to be paid in advance. SSVG was required to go ahead with the project work immediately. The work order was issued by SEPCO on 16.06.2009. A cheque for a sum of Rs. 20,97,46,840/- towards payment of 50% advance was issued to SSVG on 25.06.2009. SSVG wrote a letter on 28.06.2009 to the Dy. ....
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....ction 156(3) of the Code after perusing the complaint which discloses commission of cognizable offence and has not committed any illegality by directing the police to register FIR. The learned single Judge further held that since the police authorities are investigating into the matter after registering FIR and final report is yet to be filed, therefore, challenge at this stage by SSVG is premature. d) Questioning the order of the learned single Judge, SSVG preferred W.A. No 281 of 2009 before the Division Bench of the same High Court. The Division Bench, entirely agreeing with the reasons assigned by the learned single Judge, by order dated 01.04.2010, dismissed their writ appeal and permitted the Magistrate to proceed in accordance with law. Against the decision of the Division Bench, SSVG preferred appeal arising out of SLP (Crl.) 3267 of 2010 before this Court. (e) On 09.04.2010, Chhattisgarh Police had taken Srinivas Gundluri, Managing Director and Principal Officer of SSVG into custody in Crime No. 272 of 2009 and produced him for transit warrant before CMM at Hyderabad and on the same day he applied for transit bail and the same was granted directing him to....
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....circumstances, more particularly, suit for recovery of money filed by SEPCO is pending in the civil court and counter claim of the appellants is also pending in the same suit, proper course would be to appoint an arbitrator to resolve the dispute. However, according to him, instead of pursuing the said legal and contractual remedy, the respondent- SEPCO rushed to the Magistrate and the Magistrate committed an error in invoking jurisdiction under Section 156(3) of the Code by directing the Investigation Officer concerned to submit a charge sheet in the Court. He also submitted that inasmuch as the appellants, as on date, have repaid Rs. 10 crores as against the claim of Rs. 21 crores and made a counter claim for Rs. 10 crores, the criminal proceedings could be deferred till appropriate decision being taken in the civil proceedings. On the other hand, Mr. Sundaram, learned senior counsel for SEPCO, after taking us through the salient features in the complaint, specific allegations with reference to the criminality of the respondents, various terms of the contract and the conduct of the appellant in diverting the entire amount received for a different purpose and in view of the Sectio....
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.... the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170; (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Section 376, 376A, 376B, 376C or 376D of the Indian Penal Code (45 of 1860). (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under Section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer....
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....es, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. Section 201 - Procedure by Magistrate not competent to take cognizance of the case If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,-- (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. Section 202 - Postponement of issue of process (1) Any Magistrate, on receipt of a complaint of an offence of which he is authori....
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....Court ought to have interfered with and quashed the same. We have perused the facts of this case. The High Court, in the said decision, quashed the prosecution against two of the four accused. We have also gone through the factual details as stated in paragraphs 2, 3 and 4 as well as the submissions made by the counsel. After narrating all the events in paragraph 7, Their Lordships have held that: 7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case al....
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....ll depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(l)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. 15. This position of law has been explained in several cases by this Court, the latest being Nirmaljit Singh Hoon v. State of West Bengal. 16. The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction, to send a complaint disclosing a cognizable offence -- whether or not triable exclusively by the Court of Session -- to the police for investiga....
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....fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. 18. In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under Section 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses under Section 200 CrPC, which is the first step in the procedure prescribed under that chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by police under Section 156. 12. In Tula Ram and Ors. v. Kishore Singh (supra) again this Court considered order for investigation under Section 156(3) on a complaint. After considering various earlier decisions, the Court on a careful consideration of the facts and circumstances of the case propounded the following legal propositions: 1. That a Magistrate can order investigation under Section 156(3) only at....
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....spondents-accused praying for taking cognizance against them under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of Indian Penal Code. It has been further prayed that case be sent to the concerned Police Officer under Section 156(3) Cr.P.C. Heard on the application. Perused Complaint under Section 200 Cr.P.C. According to this complaint, a prayer has been made to take cognizance against Accused-Mr. Srinivas Gundluri and Smt. Bharati Devi, Director and others under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of Indian Penal Code. All these are cognizable offences. Therefore, application filed on behalf of the Complainant under Section 156(3) Cr.P.C. is allowed and original complaint and other documents are sent to concerned Station House Officer and he is directed to register a first information report and conduct investigation in the matter on the basis of facts mentioned in the and after completion of investigation, to submit a charge sheet in the Court. Sd/- Illegible Chief Judicial Magistrate Korba (Chhatisgarh) From the above, it is clear that the Magistrate only ordered investigation under Section 15....
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....final report has been defined in the Code. The chargesheet or final report whatever may be the nomenclature, it only means a report under Section 173 of the Code which has to be filed by the police officer on completion of his investigation. In view of our discussion, in the case on hand, we are satisfied that the Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. We are also satisfied that learned single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. We also hold that challenge at this stage by the appellants is pre-mature and the High Court rightly rejected their request. 15. It is true that Dr. Singhvi, learned senior counsel for the appellants, highlighted that out of the claim of Rs. 21 crores, Rs. 10 crores have already been paid, the appellants have also laid counter claim for Rs. 10 crores and in such a factual scenario, there is no need to continue the criminal proceedings and prayed for deferment of the same til....