Judgment:
ORDER
1. All these revisions are directed against the common order dt. 4-4-95 passed by the IX Addl. Chief Metropolitan Magistrate, Bangalore City, accepting the final 'B' report and consequently dismissing the complaint.
2. Since common questions of facts and law are involved in all these revision petitions, they are consolidated for the purpose of disposal.
3. A few facts necessary for the disposal of these proceedings are as hereunder :
The petitioner herein filed a complaint under S. 200, Cr.P.C. before the learned Magistrate requesting him to take cognizance of the offences punishable under. S. 120(b), 419, 420, 468, 471, 114 r/w 34, IPC. The said complaint was referred to the jurisdictional police for investigation and report u/S. 156(3), Cr.P.C. The Chickpete police who have investigated the matter, filed a 'B' report holding that the complaint is of civil nature. This 'B' report is challenged by the complainant by filing a protest petition. The learned Magistrate after considering the complaint allegations, took cognizance of the offences alleged and proceeded to record the sworn statements of the complainant and the witnesses and passed this impugned order by dismissing the complaint. The learned Magistrate during the course of his order has referred to the final report submitted by the police and also the complaint allegations and the sworn statement made by the complainant himself and passed an order under S. 203, Cr.P.C. The legality and correctness of the impugned order is challenged in these petitions.
4. Sri M. V. Devaraj, the learned Senior Counsel for the petitioner canvassed two important points for my consideration. The first one is that the trial Judge has erred in relying upon the investigation material produced before the Magistrate to come to the conclusion that there is no ground to proceed against the accused persons. The second according to him is the conclusions reached by the learned Magistrate are not based on the material placed by the complainant. It is also contended that the learned Magistrate has adopted a procedure which is contrary to the law laid down by the Supreme Court in the decision reported in ILR (1989) Kant 1486 : (1989 Cri LJ 963) (M/s. India Carat Pvt. Ltd. v. State of Karnataka). He has also relied on the decisions reported in 1976 SCC (Cri) 507 : (1976 Cri LJ 1533) (Smt. Nagawwa v. Veeranna Shiyalingappa Konjalgi, (1978) 2 Kant LJ 329 : (1978 Cri LJ NOC 252) (Lalajibaishah v. Asalchand Hukmischand Porwal).
5. Sri K. Prabhakar and Sri M. T. Nanaiah, the learned counsel appearing for the respondents have relied upon the decision of the Supreme Court reported in : 1972CriLJ1037 (Debendra Nath Bhattacharya v. State of West Bengal) and (1984) 1 Kant LJ 33 : (1984 Cri LJ 1275) (Gurappa Basappa Dalal v. Modinsab Malik Sab Bagwan) and submitted that the learned Magistrate taking cognizance of an offence on a private complaint has necessarily to take into consideration the investigation made by the police and also the sworn statement made by the complainant himself before him. It is further submitted that the Magistrate at the stage of S. 203 of Cr.P.C. was to determine the correctness or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what was stated could be true unless the prosecution allegations were so fantastic that they could not reasonably be held to be true. It is submitted that if the material placed before the Court if read carefully, only makes out a dispute of civil nature and no offence punishable under Indian Penal Code or any other law is made out and hence the order of dismissal passed by the learned Magistrate justifiable.
6. Therefore, the point for consideration in this revision is whether the learned Magistrate is right in dismissing the complaint relying upon the sworn statement the complainant apart from the material collected by the investigating agency. The first controversy is settled by the decision of this Court in the case of Lalajibaishah v. Asalchand Hukmischand Porwal (1978) 2 Kant IJ 329 : (1978 Cri LJ NOC 252) wherein it is observed that S. 203 of the Code lays down that a Magistrate has power to dismiss a complaint after taking into consideration the statements on oath if any of the complainant and his witnesses and the result of the enquiry or investigation if any under S. 202 of the Code. Such a dismissal can be made u/S. 203 of the Code if, after considering the afore-mentioned material, a Magistrate is of opinion that there are no sufficient grounds for proceeding in the case. Therefore, the Sessions Judge is right in pointing out that the Magistrate ought not to have taken into consideration the material before him which was collected by the police while investigating into the case as per the directions of the Magistrate by virtue of S. 156(3) of the Code. Further the same question came up again before this Court in the case of Gurappa Basappa Dalal v. Modinsab Malik Sab Bagwan, (1984) 1 Kant LJ 33 : (1984 Cri LJ 1275). Justice N. D. Venkatesh, (as he then was) commenting upon the provisions of S. 203, Cr.P.C., held, Magistrate taking cognizance of an offence on a private complaint has to take into consideration : (i) Complaint in writing, if one is made in writing; (ii) statements on oath of complainant and his witnesses; (iii) result of any inquiry or investigation if any made under S. 202, to form an opinion as to whether there was sufficient ground for proceeding in the matter. Careful perusal of the two decision cited supra clearly show that in the first case, learned Judge was not directly dealing with the scope of S. 202, Cr.P.C. While in the latter case learned Judge was mainly dealing with the said aspect to appreciate whether the learned Magistrate was right in referring to the police investigation. Section 202(1), Cr.P.C. merely provides that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under S. 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks tit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 provides that if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under S. 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
7. Section 203 clearly provides that the Magistrate has necessarily to take into consideration the statements of the complainant made on oath and of the witnesses and result of the inquiry or investigation referred to in Section 202. The investigation referred to in S. 202 is the investigation made by the police under S. 156(3), Cr.P.C. Therefore, I hold that the law laid down in Gurappa Basappa Dalal's case (1984 Cri LJ 1275) is a direct decision on the question and there cannot be any controversy on the same.
8. In this case, the learned Magistrate has no doubt referred not only to the sworn statement made by the complainant but also to the material collected by the Investigation Officer. Therefore, the first contention canvassed by the learned counsel for the petitioner is necessarily to be rejected.
9. The scope of S. 203 has been settled in a catena of decisions of this Court. The two decisions of this Court referred to by the learned counsel for my consideration are already extracted above. The Supreme Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, 1976 SCC (Cri) 507 : (1976 Cri LJ 1533) has held as follows (at p. 1537, Para 5 of Cri LJ) :
'However, the Magistrate in such proceedings can take into consideration inherent improbabilities appearing on the face of the complain or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. One the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.'
10. There is no deviation of the law thereafter. Thereafter the ruling rendered by the Supreme Court in : 1972CriLJ1037 is also to the same effect. It is unnecessary for me to extract the discussion made therein. It is one of the grounds in the revision that the order of the learned Magistrate is contrary to the law laid down by this Court in M/s. India Carat Pvt. Ltd. v. State of Karnataka, ILR (1989) Kant 1486 : (1989 Cri LJ 963). But I find these contentions bereft of merit as the learned Magistrate has followed procedure laid down therein.
11. That takes me to the question whether the learned trial Judge has exercised his discretion, judiciously while dismissing the complaint filed by the petitioner.
12. It is undisputed that the genesis for the complaint is the serious dispute between the parties in respect of an agreement of sale of certain immovable properties situated in Bangalore. It is submitted that the petitioner entered into an agreement with the previous owner of the property for purchase of 10 shop premises for a sum of Rs. 10 lakhs and that an advance amount Rs. 50,000/- was paid on the date of agreement and that the parties entered into an agreement. It is alleged that the petitioner was always ready and willing to perform his part of the contract but the accused 1 to 4 who are the LRs. of the original executants of the agreement have not done their part of the agreement and, therefore, there was a suit for specific performance of the agreement, in O.S.No. 458/86 pending on the trial of the City Civil Court, Bangalore. During the pendency of the suit, accused 1 to 4 sold the premises in question in favour of 5th accused. This conduct of the accused Nos. 1 to 4 who are the defendants in the suit was the subject-matter of the contempt proceedings before this Court which culminated in its dismissal. It is thereafter that the petitioner thought of taking criminal action against the defaulters i.e. accused Nos. 1 to 4 who committed default in complying the terms of the sale agreement. The 5th accused as stated above is the purchaser of the property. It is stated that he has purchased it with full notice of the agreement executed by the owners of the said property namely forefathers of A1 to A4. Penal provision is invoked are Ss. 120(b), 419, 420, 468, 471, 114 r/w 34, IPC. Admittedly there is no forgery to any documents by the accused persons as they have executed a sale deed in favour of 5th accused. It is submitted at this stage by the learned counsel for the petitioner that A-1 to A-4 have forged a Will which is not referred to in the complaint at all. It is also the case of the complainant that the accused 1 to 4 have fraudulently misused the documents which they have reason to believe that it is a forged documents. There is no specific averment in the complaint which document was the forged document and which forged document was made use by the accused persons. A sale of immovable property, contrary to the terms of the agreement is no cheating at all. The ingredients of cheating are not attracted to the allegations made in the complaint. Therefore, S. 34, IPC cannot be invoked to a case like this.
13. I have to make a detailed reference to this material in order to satisfy myself as to the correctness of the order of the learned Magistrate.
14. Perusal of the impugned order clearly shows that the learned Magistrate has taken into consideration the investigation report submitted before him by the Investigation Officer and also the statement of complainant made on oath and other material. It is not an illegality in itself in relying upon the report submitted by the investigation officer in view of the observation already made by me. Therefore, I find that the allegations are more of civil in nature as rightly observed by the learned Magistrate and there was no occasion for the learned Magistrate to consider these allegations placed before him to hold sufficient to proceed against the accused persons. In my considered opinion, there is no illegality in the, impugned order and it does not call for interference. Therefore, revisions are bereft of merits and are dismissed.
15. Petition dismissed.