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Judgment
Gautam Kumar Choudhary, J
Order taking cognizance under Sections 406, 420 of the Indian Penal Code in connection with Sadar P.S. Case No.181 of 2017 corresponding to G.R. No.659 of 2017 pending in the Court of learned Chief Judicial Magistrate, Hazaribag is under challenge.
Petitioner is the land owner and the informant is developer who was engaged for construction of multistory building vide development agreement dated 07.09.2013 and in pursuance of it, Rupees Thirty Lakhs was paid to the petitioner by the informant, but neither the land was handed over in pursuance to the development agreement dated 7.09.2013, nor the amount was refunded.
Police on investigation, submitted final form as of civil dispute. Learned Court has taken cognizance, on the basis of materials on record.
The order is challenged on the ground that order taking cognizance is against the settled position of law. When any Court differs with the findings of the investigating agency, it has to record specific reason for the same. In the present case, cryptic order taking cognizance has been passed by only referring to some of the paragraphs of the case diary, but no reason has been assigned as to how the offence has been made out under the said Sections. Only Rupees Fifteen Lakhs was taken by the petitioner which has already been returned at the time of disposal of anticipatory bail application.
It is submitted by learned counsel on behalf of complainant that Rupees Thirty Lakhs has been received, out of which only Rupees Fifteen Lakhs has been returned. There are documents in support of it, which can be considered only at the time of trial and not at the stage of investigation.
After having the considered the submissions advanced on behalf of both sides, there cannot be any quarrel with the legal positions stated on behalf of the petitioner that in case where the Court differs with the findings of the investigating agency, reason must be recorded. In the present case, a cryptic order has been passed without referring to the materials and the reasons for taking cognizance. It has been held in Nupur Talwar v. CBI, (2012) 11 SCC 465 :
In the circumstances mentioned hereinabove, it was befitting for the Magistrate to pass a well-reasoned order, explaining why she was taking a view different from the one prayed for in the closure report.
Under the circumstance, the impugned order is set aside and the learned Court below is directed to pass speaking and reasoned order afresh.
Criminal Miscellaneous Petition is allowed.