TaxTMI 
TaxTMI 
TaxTMI 
2010 (7) TMI 1144
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....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. General Manager, SEPCO complaining that despite repeated....
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....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 appear before Magistrate Class-I, Korba on or before 19.04.2010. On 19.04.2010, Sri....
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....n 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 Sections 156(3) and 190 of the Code, the Magistrate is well within his powers to pass the impu....
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....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, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the a....
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....plaint; 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 authorised to take cognizance or which has been made over to him under Section 192 , may, if he thinks fit and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made ....
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....ld 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 also quash the proceeding even though it may be at a preliminary stage. On perusal of the factual details, while agreeing with the legal principles, we are of the view that since in the said case summons were ordered to be issued by the learned Magistrate, the said decision is distinguishable and not applicable to the case on hand. 10. Mr. Sundaram, learned senior counsel for SEPCO pressed into s....
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....nce 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 investigation under Section 156(3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered under Section 156(3) and the one directed under Section 202, has also been maintained under the new Code; but a rider has been clamped by the first proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make ....
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....nesses 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 the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code. 2. Where ....
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....n 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 156(3) of the Code. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not, directed the police officer concerned for investigation under Section 156(3) of the Code. As rightly observed by the learned single Judge of the High Court, the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses under Section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking....
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....rned 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 till the outcome of the civil proceedings. However, Mr. Sundaram for SEPCO, by taking us through various allegations in the complaint highlighted that SSVG by misappropriating the advance money for the purpose other than for which it was granted submitted that the Magistrate correctly exercised his jurisdiction under Section 156(3) and referred the matter for investigation. He also submitted that the complaint very much discloses cognizable offence under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of IPC. Whatever may be, we are not here to find out the truth or otherwise of....