Order 1

Order Details: Order
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IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
22nd COURT, ANDHERI, MUMBAI.
COMMON ORDER BELOW EXH-01 & 05 IN C.C. NO. 521/Misc/2018
1. Pursuant to the order dated 28.02.2017 passed in
502/SW/2016 under section 156(3) of Cr.P.C., F.I.R. was registered by
M.I.D.C. Police Station, which after investigation filed ‘C’ summary
report under section 173(1) of Cr.P.C. The Investigating Officer came to
the conclusion that the grievance espoused by the informant is of civil
nature, hence no offence has been committed at all and case is found to
be neither true nor false.
2. After filing of the report by the police, notice was issued to
the informant for calling his say. Being aggrieved by the ‘C’ summary
report filed by the police, the informant filed protest petition Exh-05,
and prayed that the final report submitted by the police be set aside and
reinvestigation be directed.
3. Perused the report under Section 17(1) of Cr.P.C. and
protest petition. Heard learned Advocate for petitioner. The police
report under Section 173 Cr.P.C. contains the facts discovered or
unearthed by the police and the conclusions drawn by the police
therefrom.
4. In the protest petition the informant has raised various
grounds of objection to the final report filed by the police, which can be
summarized as under:-
a) The investigation has been conducted in a shabby manner.
It suffers from various defects and lacks important pieces of
evidence.
b) The final report is not based on the analysis of material
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collected by the investigation agencies during
investigation.
c) Despite collecting sufficient evidence against the accused,
the police has filed the closure report based on the
statement of accused No.4, who conveniently termed the
dispute as civil dispute.
d) There is ample evidence regarding agreement between the
parties, cheating, criminal breach of trust by the accused
and misappropriation of amount of informant by the
accused, even then the investigation agency filed the
closure report solely based on the statement of accused
No.4 by totally ignoring the other material collected by
them.
e) The criminal prosecution cannot be thwarted mainly
because civil proceedings are also maintainable and
already filed as aggrieved party can take recourse to both
the proceedings.
5. On perusal of the police report, it transpires that the police
has recorded the statement of informant on 24.03.2017 wherein he
categorically stated about the Joint Venture Agreement between the
informant and the accused, the terms of the contract, supply of goods
by the informant, outstanding dues against the accused, cheating and
misappropriation of that amount by the accused for its own use. The
Investigation Officer also collected the documents from the accused and
the informant. The document submitted by the informant to the
Investigation Officer comprises of agreement between the parties dated
23.08.2012, e-mail correspondences of the parties, summary of
commodities supplied by the informant, statement of outstand dues,
and mails of the accused regarding payments. There is sufficient
material in the police report comprising of statement recorded under
section 161 of Cr.P.C., and documents filed along with the closure
report, which discloses the commission of cognizable offence under
sections 406, 409, 418, 420 read with Section 34 of the I.P.C. A prima-
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facie case is clearly made out in the police report for taking cognizance.
6. It appears that despite collecting sufficient evidence, the
Investigating Officer got swayed by the fact of Arbitration proceeding
pending between the parties, which was disclosed by the Accused No.4
in his statement before the police. It is needless to mention here that by
availing civil remedy, a person is not debarred from invoking remedy
under criminal law based on the same facts. The conclusions of the
Investigating Officer which are solely based on the fact of pending
arbitration proceeding, are totally misplaced and unacceptable.
7. It is a trite law that a Magistrate who on receipt of a
complaint, orders an investigation under Section 156(3) Cr.P.C. and
receives a police report Under Section 173(1), Cr.P.C. may, thereafter, do
one of three things: (1) he may decide that there is no sufficient ground
for proceeding further and drop action; (2) he may take cognizance of
the offence Under Section 190 (1)(b) on the basis of the police report
and issue process; this he may do without being bound in any manner
by the conclusion arrived at by the police in their report; (3) he may
take cognizance of the offence Under Section 190(1)(a) on the basis of
the original complaint and proceed to examine upon oath the
complainant and his witnesses Under Section 200. If he adopts the third
alternative, he may hold or direct an inquiry Under Section 202 if he
thinks fit.
8. In the instant case, upon considering the police report,
statement recorded under section 161 of Cr.P.C. by the police during
investigation and documents filed along with the report, this court is of
the view that a prima-facie case of commission of cognizable offence
under sections 406, 409, 418, 420 read with Section 34 of the I.P.C is
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clearly made out in the police report. Thus this is a fit case for taking
cognizance of the offence Under Section 190(1) (b) and straight away
issuing process, irrespective of the view expressed by the police in their
report as to whether an offence has been made out or not.
9. In view of the aforesaid discussion the protest petition is
allowed. In result following order is passed:-
ORDER
1. Protest petition (Exh-05) is allowed.
2. Issue process against accused No.1) Harley Carmbel(India)
Private Limited; accused No. 2) Mr. Kottayam Viswanathan Sundaram;
accused No. 3) Mr.Aryan Balakrishnana Sankarankutty; accused No. 4)
Mr. Ajaykumar Krishnana Nair and accused No. 5) Mr. Mathew
Mazhuvancharyp Arambatu Paulose for the offence under sections 406,
409, 418, 420 read with Section 34 of the I.P.C
3. The ‘C’ Summary report filed by the police which was registered
as 521/Misc/2018 be renumbered as per law.
Date:- 08.10.2025
Sd/-
(Ms. G. D. Nirmale)
Addl. Chief Judicial Magistrate,
22nd Court, Andheri, Mumbai.
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