Fakhruddin Ahmad vs State Of Uttaranchal & Anr

the complainant, for allegedly committing offences

punishable under Sections 420, 467, 468 and 471 of the

Indian Penal Code, 1860 (for short `the I.P.C.').

3. A few material facts giving rise to the present appeal are:

The appellant owns a poultry farm. According to the

appellant, he used to supply chickens to the complainant and

his partner on cash and credit basis. On 15th June, 2005, the

complainant is stated to have issued a cheque in the sum of

Rs.8,65,000/- drawn on Union Bank of India in favour of the

appellant against the balance payment due. When the cheque

was presented for payment, it was returned unpaid by the

Bank with the remarks `having no fund'. Thereupon, on 7th

September, 2005, the appellant served a legal notice on the

complainant and his partner in terms of Section 138 of the

2 Negotiable Instruments Act, 1881 (for short `the Act'), calling

upon them to make payment against the said cheque. On

getting the said notice, the complainant is stated to have

cooked up a story that he had issued blank cheques bearing

his signatures to one Salim Ali as security for Rs.30,000/-

borrowed by him along with a guarantee receipt dated 25th

June, 2005 on a stamp paper. Salim Ali misplaced the

aforementioned blank cheque, which was fraudulently used

by the appellant by filling up the amount of Rs.8,65,000/- and

was presented to the banker for encashment. The

complainant claims to have informed the bank about the loss

of the cheque.

4. On 15th September, 2005, the complainant lodged a

complaint against the appellant before the Judicial

Magistrate alleging commission of offences under Sections

420, 467, 468 and 471 I.P.C. The learned Magistrate, vide

his order dated 19th September, 2005, directed the police to

register the case and investigate it. In the meanwhile, on

10th October, 2005, the appellant filed a complaint against

the complainant and his partner under Section 138 of the 3 Act and Section 420 I.P.C. The Judicial Magistrate took

cognizance of the complaint and issued summons against

the complainant.

5. Aggrieved by the filing of the complaint by the complainant,

the appellant moved the High Court for quashing of the

proceedings before the Magistrate. As noted above, the

High Court declined to interfere. Dismissing the petition,

the High Court observed thus:

"The prosecution has collected the evidence in this matter, though the evidence has not been filed before this Court by the applicant. Non- presentation of the statements recorded under Section 161 Cr.P.C. leads me to take an assumption that the prosecution has led the evidence to support to the contention of the complainant. If there is an evidence and it discloses the prima facie case (sic) against the present applicant, there is no requirement of the said statement at this stage. If the applicant wants to make any such averment or submission that it cannot be believed on account of certain contradictions in the documents, it can only be raised during the trial. This court cannot evaluate the disputed facts of the case. This court cannot decide as to whether the evidence is reliable or not."

Hence the present appeal.

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6. Mr. Salman Khurshid, learned senior counsel, appearing on

behalf of the appellant submitted before us that the order

passed by the High Court dismissing the petition is

unsustainable both in law as also on facts of the case. It

was contended that the High Court failed to appreciate that

the Magistrate had decided to proceed with the case

improperly without application of mind, which is evident

from the fact that: (i) the report submitted by the police

pursuant to the direction issued by the Magistrate under

Section 156(3) of the Code was in favour of the appellant;

(ii) the cheque in question was neither seen nor seized by

the investigating officer and (iii) the chargesheet filed is

perfunctory inasmuch as the assertions made therein, even

if taken on face value, do not satisfy the ingredients of any

of the offences alleged to have been committed by the

appellant. It was urged that the complaint against the

appellant was frivolous and had been instituted with an

ulterior motive to wreak vengeance and to pre-empt the

filing of complaint against the complainant under Section

138 of the Act. It was, thus, argued that the parameters of

5 its jurisdiction under Section 482 of the Code laid down by

this Court in State of Haryana & Ors. Vs. Bhajan Lal &

Ors.1 are clearly attracted on facts in hand and, therefore, it

was a fit case where the High Court ought to have exercised

its jurisdiction under the said provision.

7. Per contra, Ms. Anagha S. Desai, learned counsel appearing

on behalf of the complainant, while supporting the order

passed by the High Court, submitted that the assertions

made in the chargesheet on the basis of the material

collected by the police do constitute cognizable offences and

as such, the High Court was justified in dismissing the

petition.

8. Before examining the rival contentions, we may briefly refer

to some of the relevant provisions in the Code. Chapter XIV

of the Code, containing Sections 190 to 199 deals with the

statutory conditions requisite for initiation of criminal

proceedings and as to the powers of cognizance of a

Magistrate. Sub-section (1) of Section 190 of the Code

empowers a Magistrate to take cognizance of an offence in 1 1992 Supp (1) SCC 335 6 the manner laid therein. It provides that a Magistrate may

take cognizance of an offence either (a) upon receiving a

complaint of facts which constitute such offence; or (b)

upon a police report of such facts; or (c) upon information

received from any person other than a police officer, or

upon his own knowledge, that such offence has been

committed. Chapter XV containing Sections 200 to 203

deals with "Complaints to Magistrates" and lays down the

procedure which is required to be followed by the

Magistrate taking cognizance of an offence on complaint.

Similarly, Chapter XVI deals with "Commencement of

Proceedings before Magistrates". Since admittedly, in the

present case, the Magistrate has taken cognizance of the

complaint in terms of Section 190 of the Code, we shall

confine our discussion only to the said provision. We may,

however, note that on receipt of a complaint, the Magistrate

has more than one course open to him to determine the

procedure and the manner to be adopted for taking

cognizance of the offence.

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9. One of the courses open to the Magistrate is that instead of

exercising his discretion and taking cognizance of a

cognizable offence and following the procedure laid down

under Section 200 or Section 202 of the Code, he may order

an investigation to be made by the police under Section 156

(3) of the Code, which the learned Magistrate did in the

instant case. When such an order is made, the police is

obliged to investigate the case and submit a report under

Section 173 (2) of the Code. On receiving the police report,

if the Magistrate is satisfied that on the facts discovered or

unearthed by the police there is sufficient material for him

to take cognizance of the offence, he may take cognizance of

the offence under Section 190 (1) (b) of the Code and issue

process straightway to the accused. However, Section 190

(1) (b) of the Code does not lay down that a Magistrate can

take cognizance of an offence only if the investigating officer

gives an opinion that the investigation makes out a case

against the accused. Undoubtedly, the Magistrate can

ignore the conclusion(s) arrived at by the investigating

officer.

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10.Thus, it is trite that the Magistrate is not bound by the

opinion of the investigating officer and he is competent to

exercise his discretion in this behalf, irrespective of the view

expressed by the police in their report and decide whether

an offence has been made out or not. This is because the

purpose of the police report under Section 173 (2) of the

Code, which will contain the facts discovered or unearthed

by the police as well as the conclusion drawn by the police

therefrom is primarily to enable the Magistrate to satisfy

himself whether on the basis of the report and the material

referred therein, a case for cognizance is made out or not.

11.The next incidental question is as to what is meant by

expression `taking cognizance of an offence' by a Magistrate

within the contemplation of Section 190 of the Code?

12.The expression `cognizance' is not defined in the Code but

is a word of indefinite import. As observed by this Court in

Ajit Kumar Palit Vs. State of West Bengal2, the word

`cognizance' has no esoteric or mystic significance in

criminal law or procedure. It merely means--become aware 2 [1963] Supp. 1 S.C.R. 953 9 of and when used with reference to a Court or Judge, to

take notice of judicially. Approving the observations of the

Calcutta High Court in Emperor Vs. Sourindra Mohan

Chuckerbutty3, the Court said that `taking cognizance does

not involve any formal action; or indeed action of any kind,

but occurs as soon as a Magistrate, as such, applies his

mind to the suspected commission of an offence.'

13.Recently, this Court in S.K. Sinha, Chief Enforcement

Officer Vs. Videocon International Ltd. & Ors.4,

speaking through C.K. Thakker, J., while considering the

ambit and scope of the phrase `taking cognizance' under

Section 190 of the Code, has highlighted some of the

observations of the Calcutta High Court in Superintendent

& Remembrancer of Legal Affairs, West Bengal Vs.

Abani Kumar Banerjee5, which were approved by this

Court in R. R. Chari Vs. State of U.P.6. The observations

are:

3

(1910) I.L.R. 37 Calcutta 412 4 (2008) 2 SCC 492 5 A.I.R. (37) 1950 Calcutta 437 6 A.I.R. (38) 1951 SC 207 1 0 "7. ... What is `taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) CrPC, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."

14.From the afore-noted judicial pronouncements, it is clear

that being an expression of indefinite import, it is neither

practicable nor desirable to precisely define as to what is

meant by `taking cognizance'. Whether the Magistrate has

or has not taken cognizance of the offence will depend upon

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.

15.Nevertheless, it is well settled that before a Magistrate can

be said to have taken cognizance of an offence, it is 1 1 imperative that he must have taken notice of the

accusations and applied his mind to the allegations made in

the complaint or in the police report or the information

received from a source other than a police report, as the

case may be, and the material filed therewith. It needs little

emphasis that it is only when the Magistrate applies his

mind and is satisfied that the allegations, if proved, would

constitute an offence and decides to initiate proceedings

against the alleged offender, that it can be positively stated

that he has taken cognizance of the offence. Cognizance is

in regard to the offence and not the offender.

16.Adverting to the facts on hand, as noted above, on

presentation of the complaint by the complainant before the

Magistrate on 15th September, 2005, on its perusal, instead

of taking cognizance of the offence alleged, with a view to

issue a process, the learned Magistrate considered it

appropriate to send the complaint to the police for

investigation under Section 156 (3) of the Code. Therefore,

it cannot be said that at the initial stage on 15th September,

2005 the Magistrate had taken cognizance. Thereafter, 1 2 pursuant to the directions by the Magistrate, the police

registered the F.I.R. on 22nd September, 2005 and

submitted its report which reads as under:

"Sir, Applicant Virendra Singh Chauhan, the abovementioned, has issued two blank cheques bearing no. and A/c no. as mentioned back, has been issued to Salim Ali against the guarantee for Rs.30,000/- taken from him. The report of it being misplaced from the hands of Salim Ali has been given to Police Station and same the action has been taken in Bank by Accused Fakhruddin in relation to the cheques. There exist no evidence regarding this with the Applicant. The lodging of report regarding misuse of cheques by Fakhruddin or any application thereto has not been confirmed. Send for kind perusal.

S.I. Dinesh Rana P.S. Haldwani"

17.It appears from the afore-extracted report that the stand of

the complainant that a report regarding misplacing of the

cheque and its user by the appellant had been lodged with

the police was found to be incorrect. Nonetheless, after

further investigations the police finally filed the chargesheet

1 3 against the appellant on 16th December, 2005. Relevant

portion of the chargesheet reads thus:

"Applicant Virendra Singh Chauhan on 22.09.05 vide Order of Ld. Court u/s 156 (3) Cr.P.C. filed a report that accused block no.3 after getting the cheque somehow, issued by Applicant, which got misplaced by witness Salim Ali, by his own accord filled hefty amount of Rs.8,65,000/- (Rupees Eight Lacs Sixty Five Thousands only) and produced it before the Bank for the withdrawal of the same but did not get the money as cash was not there. This case, after recording statement, case was investigated and till now after investigation, against the accused, u/s 420, 467, 468, 471 IPC is proved. There is stay arrested against accused from High Court of Nainital.

Hence, it is prayed that accused be summoned and after taking evidence he be punished."

18.Although the order passed by the Magistrate taking

cognizance is not before us but it is stated that the

Magistrate took cognizance of the aforenoted offences on the

basis of the afore-extracted chargesheet and the statements

of various persons recorded by the police. Learned counsel

appearing for the State placed on record copies of the

1 4 statements. It is pertinent to note that in the impugned

order, extracted above, the High Court has itself observed

that no material had been placed before it, which, in fact,

led the learned Judge to assume that the prosecution has

produced evidence in support of the complaint. It is, thus,

manifest that in the absence of material stated to have been

filed alongwith the chargesheet, the High Court did not get

an opportunity to apply its mind as to whether on the basis

of the material before the Magistrate, a prima facie case had

been made out against the accused-appellant. Under these

circumstances, we feel that it may not be proper to express

any opinion on the merits of the case against the appellant

based on the documents placed before us by learned

counsel for the State, save and except noting that the

cheque in question, i.e. the `valuable security' does not form

part of this set of documents.

19.So far as the scope and ambit of the powers of the High

Court under Section 482 of the Code is concerned, the

same has been enunciated and reiterated by this Court in a

catena of decisions and illustrative circumstances under 1 5 which the High Court can exercise jurisdiction in quashing

proceedings have been enumerated. However, for the sake

of brevity, we do not propose to make reference to the

decisions on the point. It would suffice to state that though

the powers possessed by the High Court under the said

provision are very wide but these should be exercised in

appropriate cases, ex debito justitiae to do real and

substantial justice for the administration of which alone the

Courts exist. The inherent powers possessed by the High

Court are to be exercised very carefully and with great

caution so that a legitimate prosecution is not stifled.

Nevertheless, where the High Court is convinced that the

allegations made in the First Information Report or the

complaint, even if they are taken at their face value and

accepted in their entirety, do not prima facie constitute any

offence or make out a case against the accused or where the

allegations made in the F.I.R. or the 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, the

1 6 powers of the High Court under the said provision should

be exercised. [See: Bhajan Lal's case (supra)]

20.Bearing in mind the above legal position, we are convinced

that the High Court was not justified in dismissing the

petition on the afore-stated ground. In our opinion, in

order to arrive at a conclusion, whether or not the appellant

had made out a case for quashing of the chargesheet

against him, the High Court ought to have taken into

consideration the material which was placed before the

Magistrate. For dismissal of the petition, the High court

had to record a finding that the uncontroverted allegations,

as made, establish a prima facie case against the appellant.

In our judgment, the decision of the High Court dismissing

the petition filed by the appellant on the ground that it is

not permissible for it to look into the materials placed

before the Magistrate is not in consonance with the broad

parameters, enumerated in a series of decisions of this

Court and briefly noted above, to be applied while dealing

with a petition under Section 482 of the Code for discharge

and, therefore, the impugned order is unsustainable. 1 7

21.For the foregoing reasons, the impugned order is set aside

and the matter is remitted back to the High Court for fresh

consideration in accordance with law. Nothing said

hereinabove shall be construed as an expression of any

opinion on the merits of the case.

22.The appeal stands disposed of accordingly.

.......................................J. (C.K. THAKKER)

.......................................J. (D.K. JAIN)

NEW DELHI;

SEPTEMBER 5, 2008.

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