BALWANT SINGH TOMAR @ BALWANTA Vs. TIGMANSHU DHULIA

JUDGEMENT

(1.) THIS petition under Section 482 of Cr.P.C. is preferred by the petitioner/complainant for quashing the order dated 17.04.2012 passed by J.M.F.C., Gwalior in Complaint Case No.__/2012 (Balwant Singh Tomar v. Tigmanshu Dhulia Film & Ano.) by which an application under Section 156 (3) of Cr.P.C. filed by the petitioner/complainant has been dismissed.

(2.) BRIEF facts of the case are that the petitioner/complainant, Balwant Singh Tomar submitted a complaint in writing on 23.02.2012 to the Station House Officer, Police Station Madhoganj, District Gwalior and the Superintendent of Police, District Gwalior alleging therein that the respondents No.1 & 2 had approached while he was at his house in Guda and sought his assistance for the purpose of making film 'Paan Singh Tomar' for which they offered to pay Rs.40.00 lacs but after seeking and procuring his assistance for making of the film they had not paid Rs.40.00 Lacs. Therefore, it was prayed that after registering the case against the respondents No.1 & 2 for commission of the offence of cheating, they may be punished. Thereafter, on 24.02.2012 petitioner preferred writ petition bearing No.1608/12, alleging inaction of the police authorities for not taking action against the respondents No.1 & 2 on the basis of the aforesaid complaint dated 23.02.2012 and prayed for issuance of writ of mandamus to the police authorities for registering the FIR against the respondents No.1 & 2 in respect of commission of the offence of cheating as alleged in the complaint dated 23.02.2012. The writ petition was disposed of by this Court vide order dated 01.03.2012 with an observation that if the petitioner prefers a representation, the authorities will deal with it in accordance with the law. Thereafter, on 06.03.2012, the petitioner preferred an application before the Superintendent of Police, Gwalior praying for registration of FIR against the respondents. On 09.04.2012, the petitioner filed an application under Section 156 (3) of Cr.P.C. before the Court of J.M.F.C., Gwalior seeking a direction to the Station House Officer, Kampoo, District Gwalior to register FIR in respect of commission of offence punishable under Sections 419 and 420 of IPC against the respondents No.1 & 2 and for investigation thereof. The application was rejected by the Court vide the impugned order dated 17.04.2012. The relevant portion of the impugned order reads as under: - <IMG>JUDGEMENT_284_MPHT1_2014.jpg</IMG>

(3.) SHRI A.S. Bhadoriya, learned counsel appearing on behalf of the petitioner submits that the petitioner had submitted a complaint in writing for commission of offence of cheating by the respondents No.1 & 2 to the Station House Officer and the Superintendent of Police, District Gwalior but the complaint has not been registered by the police. Thereafter, in compliance with the direction of this Court in W.P.No.1608/12, the petitioner submitted an application dated 06.03.2012 before the Superintendent of Police, Gwalior for registering the FIR against respondents No.1 & 2 but the FIR has not been registered, then, the petitioner filed an application under Section 156 (3) of Cr.P.C. but the application was dismissed by the impugned order observing that the alleged dispute i.e., the breach of contract is of civil nature. It is further submitted by the learned counsel that sub -section (1) of Section 156 of CrPC empowers the Police Officer incharge of the Police Station to investigate cognizable offences. The police has statutory duty to investigate the circumstances of an alleged cognizable offence but on failing to do so, the petitioner submitted an application before the Magistrate under Section 156 (3) of Cr.P.C.. Sub -section (3) of Section 156 of Cr.P.C empowers any Magistrate to order for an investigation. The power under Section 156 (3) of Cr.P.C. has been conferred on the Magistrate to check the arbitrary action of the police in matters of registration of FIR of cognizable offence. It is mandatory under Section 156 (3) of Cr.P.C. that if the Magistrate found prima -facie the cognizable offence is made out from the contents of the application, he is bound to order to register the case and order to investigate the matter. As per facts mentioned in the application, it is clear that the offence of commission of cheating which is cognizable offence is made out against the respondents No.1 & 2. Learned counsel has further submitted that merely because alleged act has civil profile, not sufficient to denude it of its criminal outfit. He has placed reliance on the following decisions: -