KUNWARJEE JIVRAJ LODHAYA Vs. BHAGCHAND MOTILAL RAKA

JUDGEMENT

(1.) WHEN a Magistrate, dealing with a criminal complaint, takes cognizance thereof, postpones issuance of the process and directs a Police Officer to investigate and submit a report under section 202 (1) of the Code of Criminal Procedure, 1973, whether it is proper on his part to issue process at a later date on the same material before receipt of the report called for? This is precisely the question raised in this Criminal Application.

(2.) BHAGCHAND Motilal Raka filed a complaint in the Court of Judicial Magistrate, First Class at Pachora bearing Criminal Case No. 185 of 1990 alleging that the Chairman and 4 other Directors and a former servant of the Peoples Co-operative Bank Limited, Pachora have committed offence punishable under sections 406 and 408 read with section 34 of the Indian Penal Code. It is the allegation of the complainant that some cheques, which did not contain any signature of the account holders, totally worth Rs. 11,39,632/- were encashed by the bank officials and thus, have misappropriated by committing offence of criminal breach of trust. It is alleged by the complainant that this sum was withdrawn by the bank officials without the consent of the concerned account holder. This complaint came to be filed on 1-11-1990. The learned Magistrate thereupon proceeded to examine the complainant and the complainants testimony was recorded and thereafter he passed the following order -----Call report under section 202 of Cr. P. C. from P. S. O. Pachora and Jamner. Sd/-J. M. F. C. , Pachora". It is not in dispute that the report so called was not received by the learned Magistrate and in its absence, on 16-11-1990 learned Magistrate was pleased to pass a further order to the following effect -"read complaint and Verification of the complainant. Heard Shri Yeole, advocate for the complainant. There is prima facie case against the accused persons. Issue process against accused No. 1 to 6 under section 406, 408 r/w. section 34 of I. P. C. Sd/-J. M. F. C. , Pachora. 16-11-90".

(3.) THIS Criminal Application challenges the issue of process and prays for quashing of the said order dated 16-11-90 in Cri. Case No. 185 of 90.