NAGPUR BENCH AT NAGPUR v. STATE OF MAHARASHTRA & Anr.

Mr. N. Rizwy advocate for the applicants. CORAM : T.V. NALAWADE, J. th 2012 . DATED : AUGUST 29 Heard Advocate for the applicants. The application is made for quashing an order made by the 2nd Additional Chief Judicial Magistrate, Nagpur, in Criminal Complaint Case No.1355 of 2011 and for consequential relief of quashing of the First Information Report registered at Police Station Dhantoli, Nagpur on the basis of the direction given by the Additional Chief Judicial Magistrate, Nagpur, under Section 156(3) of Criminal Procedure Code. It was submitted that in the past a report under Section 154 of Criminal Procedure Code was given by the original complainant in respect of seven cheques and after making investigation, the police found that no case was made out to file the report under Section 170 of Cr.P.C.. If that is the case, then the present applicants should not fear that in 2 2908apl562.12.odt the present case the police will file report under Section 170 of Cr.P.C. A submission was made that the private complaints are already filed for the offence under Section 138 of the Negotiable Instruments Act on the basis that seven cheques which bounced and in those cases, the submissions are being made for the accused that his complaints are being investigated and no progress can be made in the complaint filed under Section 138 of the Negotiable Instruments Act. This Court feels it necessary to observe that unless and until the report is filed by the Police under Section 170 read with Section 173(2) of the Criminal Procedure Code, the Magistrate does not get opportunity to take cognizance of the offence under Section 190 of the I.P.C. Unless the cognizance of the offence is taken by the Magistrate under Section 190 of Cr.P.C., nobody can make a statement that the Criminal case is filed on the basis of the report given by him to the police. In these circumstances, this Court holds that it is not necessary to keep the present proceeding pending. Liberty be given to the applicant to move if adverse report is filed against him by the police. Application stands disposed of accordingly with liberty as stated above. Authenticated copy of this order be supplied to 3 2908apl562.12.odt the applicant as per rule. JUDGE /Muley/.