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Judgment
R. Gururajan, J.—Petitioner-Laxmana Reddy is seeking an order for quashing the order dated 25-2-1999 in PCR No. 166 of 1999 produced at Annexure-D and is also seeking for various other reliefs.
Petitioner is the proprietor of a small-scale industries known as Laxmi Automates at Bangalore. He approached one Sri Venkatachar, Manager of Dhanalaxmi Bank Limited. Thereafter, he approached the Bank and he was sanctioned loan facility to the tune of Rs. 28,75,000/-. The said loan is subject to repayment by monthly equal instalment with agreed rate of interest. The petitioner states that the Bank filed a complaint before the CMM in PCR No. 166 of 1999 for certain offences committed by the petitioner. A direction was issued to the police to investigate the matter. The police authorities seized certain materials in this regard. Annexure-B is the private complaint filed by the Bank.
Petitioner approached the learned Sessions Judge seeking an anticipatory bail. The bail was granted with certain conditions. After obtaining the bail petitioner in this case is challenging the initiation of proceedings at the instance of the Bank by the learned Magistrate. Petitioner has raised several grounds in support of his contention.
Notice was issued, pursuant to which the respondents have entered appearance and have contested the matter. Matter is posted for final hearing and the parties are heard in the matter.
Sri Giridar, learned Counsel for the petitioner contends that the learned Magistrate has failed to apply his mind inasmuch as a duty is cast on him in terms of Section 156(3) of the Cr. P.C. The order ordering investigation by the police according to the Counsel is legally impermissible. Counsel strongly relies on a Division Bench judgment of this Court in Gurudut Prabhu and Anr. v. M.S. Krishna Bhat and Ors. 1999 (2) KCCR 1564 kar.
Per contra Sri Koti, learned Counsel for the respondent contends that a case is certainly made out by the respondent for investigation. He refers to the complaint and the provisions of the law in the case on hand. He also relies on judgment in Gopal Das Sindhi and Others Vs. State of Assam and Another, and S.N. Sharma Vs. Bipen Kumar Tiwari and Others, and a latest judgment of the Apex Court in State of Bihar and Anr. v. Md. Khalique and Anr. 2001(8) SC 418.
Admitted facts reveal that the petitioner did obtain certain financial benefits from the Bank by way of loan. He has also certain financial transactions with the Bank as I see from the complaint. In the complaint it is mentioned that the petitioner has caused several omissions resulting in commission of an offence punishable under Sections 420, 465, 468, 471 and 201 of the IPC. A detailed complaint is filed before learned Magistrate. Learned Magistrate has ordered investigation in terms of Section 156 of the Act. Section 156(3) of the Act reads as under:
"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 previsions of Chapter XIII.
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.
Any Magistrate empowered u/s 190 may order such an investigation as above-mentioned".
It is seen from the said section that a power is available for ordering an investigation by the jurisdictional police authorities. This power is not questioned by the petitioner. What he is questioning is that there is no application of mind while ordering investigation. The Magistrate after noticing the complaint allegations has chosen to order investigation. It is no doubt true that a detailed order has not been passed as such. That by itself cannot be characterised as non-application of mind, No detailed order as such is necessary at this stage. In this connection it is relevant to notice the various case-laws cited by the respondent''s Counsel.
In Gopal Das Sindhi''s case, supra, the Apex Court has noticed the meaning given to the word taking cognizance. The Apex Court in para 7 has noticed reading as under:
". . . . . What is taking cognizance has not been denned in the Cr. P.C. and I have no desire 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 u/s 190(l)(a) of the Cr. P.C., 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 this subsequent provisions of this chapter proceeding u/s 200 and thereafter sending it for inquiry and report u/s 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent actions of this chapter, but for taking action of some other kind, e.g., ordering investigation u/s 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence".
A reading of the relevant portion in this para would show that the proceeding by way of investigation is for subsequent action of cognizance. This case is also an answer to the argument that the Magistrate ought to have examined the complainant on oath.
The Counsel for the petitioner strongly relies on a Division Bench judgment of this Court in the case of Gurudut Prabhu, supra,
I have carefully perused the said judgment. The Court in the said case notice that a Magistrate cannot admittedly and as a matter of course refer a complaint made u/s 163 unless he is satisfied prima facie that it discloses commission of any congealable offence. This Court ruled that on a plain reading of the complaint it is obvious that the complainant in that case have been set up by the Director who had grievance against the selection of clerks by the Board of Directors and the Chairman as alleged by the petitioner. This Court confirmed the order of the Single Judge in Writ Petition No. 29498 of 1995, dated 3-2-1997. The learned Single Judge allowed the petition in the light of the allegation of the complainant. Therefore, what is required to be seen in each case is as to whether the allegations in the complaint constitute an offence on a plain reading of the complaint. The Division Bench judgment cannot be understood as a blanket ban on ordering investigation in all cases. Said ban has to be understood in the light of the allegation in the complaint. Let me see as to whether the present case would fit into the Division Bench judgment. For the said purpose one has to go through the complaint to arrive at proper conclusion. A reading of the complaint would show that the petitioner had certain financial transactions by way of loan transactions. It also shows various omissions and commissions resulting in an offence under various provisions of the IPC. A reading of the complaint would show that prima facie a case is made out by the Bank. Therefore, the learned Magistrate in my view is right in issuing an order directing investigation in the light of the allegation made in the complaint. In the Division Bench judgment the complaint in that case stood on a different footing. Therefore, the Division Bench judgment supports more the Bank than the petitioner. Applying the test of Division Bench judgment I am clearly of the view that a case for investigation is made out by the Bank in the peculiar facts of the case on hand.
It is also to be seen in this connection, the allegations made in this case and also the order of the Sessions Judge. Petitioner does admit all financial transactions in the case on hand. In the bail order the Sessions Judge has noticed the transactions of the petitioner with the Bank. Learned Sessions Judge also notices allegations of the forged invoices while granting bail. The learned Sessions Judge has categorically directed the petitioner to appear before the investigating agency and has also ordered the petitioner not leave the city without permission till completion of the investigation of the case. I cannot shut my eyes to the material allegation in the complaint, averments in the petition and the order of the Sessions Judge.
Taking into consideration all these materials as a whole it cannot be said that the learned Magistrate has committed any error whatsoever requiring my interference. I must also point out at this stage that this Court must be very careful in quashing the investigation at the preliminary stage. There are several judgments of the Apex Court in this regard. Though several judgments have been cited it is unnecessary for me to refer to all the cases except a few cases for the purpose of this case.
The Apex Court in Eastern Spinning Mills and Virendra Kumar Sharda and Another Vs. Rajiv Poddar and Others, has ruled as under:
"The order had the effect of interfering and staying investigation of offences by Investigating Officers performing statutory duty under the Cr. P.C. We consider it absolutely unnecessary to make reference to the decision of this Court and they are legion which have laid down that save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences.
We are of the opinion that investigation must proceed unhampered by Court orders. Investigation shall proceed unhindered and uninterrupted by any order made by the High Court of Calcutta subject to the following conditions".
In State of Haryana and others Vs. Ch. Bhajan Lal and others, the Apex Court ruled that the High Court may in exercise of power under Article 226 of the Constitution of India, or u/s 482 of the Cr. P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However power should be exercised sparingly and that too in the rarest of rare cases.
Recently on 28-11-2001 Md. Khalique''s case, supra, the Apex Court after noticing Ch. Bhajan Lal''s case, supra has ruled again that the High Court ought to not to have interfered with investigation and should have permitted the police to complete it. The Supreme Court emphasises the test of spare exercise of power and that too in the rarest of rare cases.
In the light of the clear pronouncement of the Apex Court the material and the facts of the case warrant no interference. It is not one of such rarest of rare case that require interference of this Court that too in a discretionary, extraordinary jurisdiction under Article 226 of the Constitution of India.
For the reasons stated above the petition stands rejected. Consequently, all the prayers also stand rejected.