Magistrate Has To Apply His Mind While Referring Matter To Police U/S 156(3) CrPC If There Is Delay In Filing Of Complaint: Andhra Pradesh HC

Brief Facts of the Case

The Criminal Petition was filed to quash the Complaint against the petitioners as the allegations made in the complaint were improbable and impossible.

The 2^nd respondent who was the defacto complainant filed a complaint under Section 190 and 200 Cr.P.C. whereby the Magistrate is empowered to take cognizance of an offence. Thereafter, FIR was registered and after completion of the investigation, the police filed the charge sheet.

The allegations against the petitioners were under various provisions of the Indian Penal Code, Section 342 (punishment for wrongful confinement), Section 420 (cheating and dishonestly inducing delivery of property), Section 448 (punishment for house-trespass), Section 192 (fabricating false evidence), Section 506 (punishment for criminal intimidation) read with Section 34 (common intention).

Previously, the 2^nd petitioner had also filed a private complaint against the defacto complainant/ 2^nd Respondent and her husband for the offence punishable under Section 138 of Negotiable Instrument Act (punishment for the dishonor of cheques).

The case of the petitioners was that the defacto complainant/ 2^nd Respondent's husband was working as Chief Manager of Indian Bank, Tirupati. The petitioners had joint savings accounts and fixed deposits with Indian Bank, Tirupati, and several transactions were done with huge amounts.

Subsequently, the 2^nd Respondent and her husband approached the 2^nd petitioner and borrowed Rs. 50 lakhs on the execution of a demand promissory note dated 13.06.2010. On 20.07.2011, the 2^nd Respondent and her husband jointly issued a post-dated cheque dated 08.09.2011 for an amount of Rs. 25 lakhs. The cheque was deposited for realization on 15.02.2012 which was returned for insufficient funds.

During the pendency of the said complaint against 2^nd respondent and her husband, she filed the present complaint against the petitioners which was forwarded by Magistrate under Section 156(3) of CrPC to the police concerned for investigation.

As per the averments of the said charge sheet, the defacto complainant/2^nd respondent was a housewife and her husband working as A.G.M. in Indian Bank; she had invested her savings and also the salaries of her husband in the properties at various places; accordingly, in the month of March 2010 she had planned to invest money in properties, hence, approached the accused No.1 to lend an amount of Rs.18 lakhs.

But the accused allegedly obtained forcibly the cheque of Rs. 25 lakhs. Subsequently, the accused had allegedly trespassed into the house of the 2^nd Respondent and abused her in filthy language, and forced her to repay the loan amount.

The present petition was filed by petitioners to quash the said proceedings invoking the inherent jurisdiction of the High Court under Section 482 of CrPC, mainly on the ground that the allegations made in the complaint were improbable and impossible as the petitioner had departed from India to US 25.04.2012 and returned only on 06.01.2013 but the alleged crime was said to be committed on 17.06.2012.

Another incident written in the complaint was false since in the complaint, 2^nd Respondent had alleged that the accused had forcibly obtained blank cheques and a covering letter of her signature in the absence of her husband, but in the covering letter, two signatures were affixed, both husband of the defacto complainant as well as her signatures.

Furthermore, in Section 161 CrPC statement to the police, the husband of the defacto complainant had admitted that they had themselves handed over the cheques to petitioners. It was submitted that the complaint was filed only to frustrate the criminal proceedings initiated by the petitioners invoking Section 138 of NI Act. The delay in lodging of the FIR or complaint should also be satisfactorily explained.

The petitioner relied on the case State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, in which it was held by the Apex Court that if the allegations made in the FIR and complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused and if the criminal proceedings is manifestly attended with malafide and/or where the proceedings are maliciously instituted with an ulterior motive, said proceedings could be quashed under Section 482 of Cr.P.C.

The counsel for the respondent/defacto complainant contended that since the allegations made were very serious in nature, unless full trial took place, the truth would not come out. Furthermore, this was a second quash petition which was not ordinarily maintainable unless in exceptional circumstances.

Having considered the submissions, the court observed that the undisputed fact was that the 2^nd petitioner had issued the statutory notice under Section 138 of NI Act to the defacto complainant and her husband. The defacto complainant had not mentioned anything about the disputes between the parties and she had not explained the delay in filing the complaint. Clearly, from the documents, it is disclosed that the defacto complainant only with a malafide intention to frustrate the proceedings pending between the parties, filed the present complaint.

"The Magistrate has also not applied his mind while referring the matter to the police on the same day, under Section 156(3) of Cr.P.C., without considering the fact that the complaint is made nearly after 08 months of the offence occurred, which is contrary to the observations made by the Apex Court in judgments cited supra. Taking the material facts into consideration, the facts of the present case squarely fit within the purview guidelines passed by the Apex Court in State of Haryana v. Bhajan Lal's case and also the law laid down by the Apex court. Hence, the proceedings against the petitioners liable to be quashed under Section 482 of Cr.P.C., by invoking the inherent power of the High Court."

With the above observations, the Criminal petition was allowed and the proceedings against the petitioners were quashed.

Case Title: M.SHYAMA SUNDAR NAIDU, CHITTOOR DT; 2 OTRS., Versus THE STATE OF AP., REP PP AND ANR.

Citation: 2022 LiveLaw (AP) 78

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