ANUPAM BHARTEEYA Vs. STATE

JUDGEMENT

(1.) This petition is directed against the order dated 28th August, 2004, of the Metropolitan Magistrate, whereby the learned Magistrate had directed the police to investigate the matter under Section 156(3), Cr.P.C. and to submit a status report on 8th December, 2004.

(2.) The facts of the case are that a complaint was filed by the complainant before the Magistrate to the effect that the Citi Bank had issued ATM cards and respective pin number on those cards for the accounts held by the complainant in the name of Mr. Mohanjit Singh, but the same were never used by the complainant since they were not received by the complainant to whom they were posted through Ordinary Post. The complainant on 27th December, 1999, issued a cheque of Rs.5 lakhs which was dishonoured on account of insufficiency of funds. The complainant on inquiry came to know that somebody had illegally withdrawn money from his account. The matter was reported to the Bank and it revealed that Rs. 17,44,000/- had been withdrawn illegally. The Bank lodges an FIR No. 58/2000 and FIR No. 864/1999 under Sections 420/406/467/468 read with Section 120B, IPC, which matter is under investigation. Vide letter dated 18th February, 2000, the complainant had asked the Bank to reimburse the account as the same had been fraudulently operated. It is alleged in the complaint that during investigation the police arrested Shri Aman Kumar Harjai and Shri Pawan Kumar Harjai and the challan was filed on 23rd May, 2002. It is further alleged that the accused persons have entered into a criminal conspiracy with Shri Aman Kumar Harjai and Shri Pawan Kumar Harjai to dishonestly receive the stolen property as also to commit the offence of criminal breach of trust. It is also alleged in the complaint that the accused persons with a common intention with Shri Aman Kumr Harjai and Shri Pawan Kumar Harjai to deprive the complainant of his money have entered into a criminal conspiracy by entering into a Memorandum of Understanding, whereby the accused persons agreed not to oppose the bail of Shri Pawan Kumar Harjai and Shri Aman Kumar Harjai and received from them a part of the stolen property, inter alia, a sum of Rs. 5.75 lakhs at the first instance and, thereafter, a sum of Rs. 1 lakh vide cheque No. 035754 dated 6.11.2003 drawn on Bank of Punjab Ltd. East Patel Nagar Branch, New Delhi and further agreed to receive a sum of Rs. 1 lakh before 30th January, 2004, Rs. 1 lakh before 30th March, 2004, Rs. 1 lakh before 30th May, 2004, Rs. 1 lakh before 30th July, 2004 and Rs. 2.5 lakhs thereafter in terms of the Memorandum of Understanding. The complainant moved the National Consumer Disputes Redressal Commission against the Citi Bank, whereupon the Citi Bank had agreed to release an amount of Rs. 5.75 lakhs to the complainant. The complainant also alleged that the Bank being a trustee of funds of the complainant is obligated on a demand being made by the complainant to return the money to him. Having refused to do so, the accused persons have committed an offence of criminal breach of trust, as they were entrusted with the safe custody of the complainant's money. The complainant also complained that the Police is not registering an FIR inspite of several requests. This complaint when came up for consideration before the learned Metropolitan Magistrate, he thought it fit to have the matter investigated under Section 156(3), Cr.P.C. in the first instance and passed an order accordingly. It is this order that the accused persons, who have not yet been summoned in the complaint, seek to challenge as one having been made without application of mind.

(3.) Counsel for the petitioners argues that the valuable rights of the accused have been affected inasmuch as the Magistrate had directed investigation under Section 156(3), Cr.P.C. instead of going into the matter himself. This, Counsel submits, is abdication of the judicial function of the Magistrate who is bound to examine the complaint himself. He also submits that a reference ought not to be made for investigation to the Police under Section 156(3) as a matter of course but should be an order made upon consideration of the material on record. He has cited various judgments to show that an order under Section 156(3) should not be made mechanically.