Order 1

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C.C. NO.406/SW/2018
ORDER PASSED BELOW EXH.01
1). The complainant filed this complaint under section 156(3) of
Criminal Procedure Code for direction to police station Versova to register
the offence under sections 406, 418, 420, 423 and 506(II) r/w 120(b), 34
of Indian Penal Code against the accused.
2). Perused the complaint with record. Heard learned advocate
for the complainant. The complainant alleged that he is a proprietor of an
Event Company in the name and style “Options Entertainment Services
Pvt.” Ltd. and worked in several bollywood films. Accused No.1 and
accused No.2 are the Chairman and Managing Director of Toyam
Industries Ltd. They entered into MOU dated 23.03.2017 thereby accused
No.1 and 2 agreed to transfer 10% as a market capital of the share in
demat account format as sweat equity for services offered by the
complainant and also agreed / assured to pay 20% of all profits. The
complainant alleged that as agreed the accused No.1 and 2 did not
appoint him as Director, but, appointed him as CEO. The complainant
introduced one Mehul Vora to the accused who agreed to work for the
said company. The complainant further alleged that at that time the value
per share of the company was Rs.2.40 paise and because of the efforts of
the complainant, the value of the per share reached upto 8.23 paise. The
complainant further alleged that the accused wrongly and illegally
removed him from the position of CEO from 16.09.2017 and his proposal
was disapproved. On the other hand, he was threatened with dare
consequences. Then accused No.3 also threatened on mobile to the
complainant. Thus, the complainant alleged that 2crores 10lakhs shares
were to be given to him which current value is approximately 14crores
70lakhs. But, the accused dishonestly misappropriate the property and
cheated him thereby committed breach of trust. Hence, the complainant
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filed this complaint with a prayer to forward this complaint to police
station Versova with direction to register an offences.
3). The learned advocate argued that the offences punishable
under section 406, 418, 420, 423 and 506(II) r/w 120(b), 34 of Indian
Penal Code are cognizable offences. The Hon'ble Supreme Court in the
case of Lalita Kumari V/s. Government of U.P. pleased to rule that if
the information about the cognizable offence is received by the police
station then it will be a duty of police station to register the crime and
carry out r/w 120(b), 34 the investigation. The learned advocate further
argued that accused no.1 to 3 committed the above offences. As the
accused committed cognizable offences therefore, direction under section
156(3) of Code of Criminal Procedure be issued.
4). Chapter XII of the Code of Criminal Procedure 1973 deals
with information to the police and their powers to investigate. As per
section 154(1) of the Code, every information relating to the commission
of a cognizable offence, if given orally to an officer in charge of the police
station, shall be reduced into writing and copy thereof be provided to
informant free of cost as per section 154 (2) of the Code. If any person
aggrieved by a refusal on the part of an officer in charge of a police station
to record the information referred to in subsection (1) may send the
substance of such information, in writing and by post, to the
Superintendent of Police for further action. The First Information Report
(FIR) is an information given to police to set criminal law in motion.
Section 155 of the said Code deals with the information as to non
cognizable cases. As per section 156 (1) of the Code any officer incharge
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 provision of Chapter XIII. Any Magistrate empowered under
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section 190 of the said code may order such an investigation as above
mentioned under section 156(3) of the said Code.
5). Thus, the Code of Criminal Procedure 1973 provided two
options to a person who has information about the cognizable offence. He
may directly approach to police under section 154 and if not satisfied or
being aggrieved he may approach to a Magistrate having jurisdiction for
order directing police to make an investigation in a cognizable case. While
passing an order under section 156(3) of the said Code a Magistrate
should be empowered to take cognizance under section 190 of the said
Code.
6). Section 2(c) defined “cognizable offence” means an offence
for which, and “cognizable case” means a case in which, a police officer
may, in accordance with the First Schedule or under any other law for the
time being in force, arrest without warrant.
7). Thus, a Magistrate may take the cognizance of the offence as
per section 190 of the said Code or if the offence is cognizable offence,
then a Magistrate, instead of taking cognizance, forward the complaint to
the police station for investigation. Generally, whenever the investigation
is required to be done for collection of evidence, documents and where
this is possibility of tampering with the evidence and documents, then it
would be just for a Magistrate to forward the same to the police station for
investigation.
8). In Lalita Kumari v/s. Government of U.P. and ors. the
Hon'ble Apex Court pleased to hold that the condition that is sine qua non
for recording an FIR under Section 154 of the Code is that there must be
information and that information must disclose a cognizable offence.
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9). Record shows that the parties entered into MOU dated
23.03.2017. As per said MOU they worked. But, accused No.1 and 2
removed to the complainant from the post of CEO and did not pay his
remuneration / profit. Hence, the transaction between the parties is civil
in nature and the complainant may seek the remedy by filing civil suit. So
far as threatening is concerned by the accused, that would be non
cognizable offence. Hence, at this juncture it is difficult to say that the
facts prima facie shows that the accused committed cognizable offence
alleged above.
10). Considering the matter before this court, prima facie it
appears that the transaction is of civil in nature. Hence, it would not be
just to forward the complaint to police for investigation under section 156
(3) of Cr.P.C. Hence, in the interest of justice, following order is pass ;
ORDER
i) The complaint under section 156(3) of Criminal
Procedure Code is rejected.
ii) Case be put for verification.
sd/
(S. B. Dige)
Metropolitan Magistrate,
Date : 22.11.2018 44th Court, Andheri, Mumbai.
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