TMI Blog2008 (9) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... udicially. In S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. Ors.[ 2008 (1) TMI 618 - SUPREME COURT] , speaking through C.K. Thakker, J., while considering the ambit and scope of the phrase `taking cognizance' u/s 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Superintendent Remembrancer of Legal Affairs, West Bengal Vs. Abani Kumar Banerjee[ 1950 (5) TMI 25 - CALCUTTA HIGH COURT] , which were approved by this Court in R. R. Chari Vs. State of U.P.[ 1951 (3) TMI 26 - SUPREME COURT] . It is pertinent to note that in the impugned order, the High Court has itself observed that no material had been placed before it, which, in fact, led the learned Judge to assume that the prosecution has produced evidence in support of the complaint. It is, thus, manifest that in the absence of material stated to have been filed alongwith the chargesheet, the High Court did not get an opportunity to apply its mind as to whether on the basis of the material before the Magistrate, a prima facie case had been made out against the accused-appellant. Under these circumstances, we feel that it may not be proper to express any opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `the I.P.C.'). 3. A few material facts giving rise to the present appeal are: The appellant owns a poultry farm. According to the appellant, he used to supply chickens to the complainant and his partner on cash and credit basis. On 15th June, 2005, the complainant is stated to have issued a cheque in the sum of Rs. 8,65,000/- drawn on Union Bank of India in favour of the appellant against the balance payment due. When the cheque was presented for payment, it was returned unpaid by the Bank with the remarks `having no fund'. Thereupon, on 7th September, 2005, the appellant served a legal notice on the complainant and his partner in terms of Section 138 of the Negotiable Instruments Act, 1881 (for short `the Act'), calling upon them to make payment against the said cheque. On getting the said notice, the complainant is stated to have cooked up a story that he had issued blank cheques bearing his signatures to one Salim Ali as security for Rs. 30,000/- borrowed by him along with a guarantee receipt dated 25th June, 2005 on a stamp paper. Salim Ali misplaced the aforementioned blank cheque, which was fraudulently used by the appellant by filling up the amount of Rs.8, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt; (ii) the cheque in question was neither seen nor seized by the investigating officer and (iii) the chargesheet filed is perfunctory inasmuch as the assertions made therein, even if taken on face value, do not satisfy the ingredients of any of the offences alleged to have been committed by the appellant. It was urged that the complaint against the appellant was frivolous and had been instituted with an ulterior motive to wreak vengeance and to pre-empt the filing of complaint against the complainant under Section 138 of the Act. It was, thus, argued that the parameters of its jurisdiction under Section 482 of the Code laid down by this Court in State of Haryana and Ors. v. Bhajan Lal and Ors. 1992CriLJ527 are clearly attracted on facts in hand and, therefore, it was a fit case where the High Court ought to have exercised its jurisdiction under the said provision. 7. Per contra, Ms. Anagha S. Desai, learned Counsel appearing on behalf of the complainant, while supporting the order passed by the High Court, submitted that the assertions made in the chargesheet on the basis of the material collected by the police do constitute cognizable offences and as such, the High Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigating officer gives an opinion that the investigation makes out a case against the accused. Undoubtedly, the Magistrate can ignore the conclusion(s) arrived at by the investigating officer. 10. Thus, it is trite that the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. This is because the purpose of the police report under Section 173(2) of the Code, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for cognizance is made out or not. 11. The next incidental question is as to what is meant by expression `taking cognizance of an offence' by a Magistrate within the contemplation of Section 190 of the Code? 12. The expression `cognizance' is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case is sought to be instituted and the nature of the preliminary action. 15. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender. 16. Adverting to the facts on hand, as noted above, on presentation of the complaint by the complainant before the Magistrate on 15th September, 2005, on its perusal, instead of taking cognizance of the offence alleged, with a view to issue a process, the learned Magistrate considered it appropriate to send the complaint to the police for investigation under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel appearing for the State placed on record copies of the statements. It is pertinent to note that in the impugned order, extracted above, the High Court has itself observed that no material had been placed before it, which, in fact, led the learned Judge to assume that the prosecution has produced evidence in support of the complaint. It is, thus, manifest that in the absence of material stated to have been filed alongwith the chargesheet, the High Court did not get an opportunity to apply its mind as to whether on the basis of the material before the Magistrate, a prima facie case had been made out against the accused-appellant. Under these circumstances, we feel that it may not be proper to express any opinion on the merits of the case against the appellant based on the documents placed before us by learned Counsel for the State, save and except noting that the cheque in question, i.e. the `valuable security' does not form part of this set of documents. 19. So far as the scope and ambit of the powers of the High Court under Section 482 of the Code is concerned, the same has been enunciated and reiterated by this Court in a catena of decisions and illustrative circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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