BELA.M.TRIVEDI - (1.) THE present petition has been filed by the petitioner-accused under Section 482 of Cr.P.C. challenging the order dated 2.2.11 passed by the Addl. Chief Judicial Magistrate, Kishangarh, Ajmer (hereinafter referred to as 'the trial court') on the Protest Petition filed by the complainant-respondent No.2 in final report No. 132/09 (FIR No. 334/09) registered at Police Station Madanganj, Ajmer.
(2.) IN the instant case, it appears that a criminal complaint was filed by the respondent No.2-complainant against one accused Aslam before the trial court for the offences under Sections 379, 392, 394, 384 and 323 IPC on 22.7.09. The said complaint was sent for investigation by the trial court under Section 156(3) of Cr.P.C. to the concerned police station. The said complaint was registered as FIR 334/09 on 1.8.09 against the said accused Aslam. The INvestigating Officer after carrying out the investigation submitted the final report to the effect that there was no evidence against the accused and the complaint filed by the complainant was a false complaint. It appears that the said final report was proposed to be submitted before the court, however on the application made by the complainant, the concerned Superintendent of Police had directed re-investigation and accordingly the re-investigation was also conducted. Thereafter again the concerned INvestigating Officer submitted the final report on 17.12.09 before the trial court stating interalia that the complainant had filed a false complaint and no case was made out against the accused. The complainant having filed the protest petition against the said final report, the trial court vide the impugned order dated 2.2.11 observed that there was a prima facie case made out against the accused Aslam and also against the Manager L and T Company for the offence under Section 392 of IPC and accordingly issued the warrant of arrest against both the accused. Being aggrieved by the said order, the petitioner has filed the present petition invoking jurisdiction under Section 482 Cr.P.C. It has been submitted by the learned counsel Mr. Vivek Goyal for the petitioner that the name of the petitioner did not appear either in the complaint or in any of the papers of investigation, however, the trial court has taken cognizance against him for the offence under Section 392 of IPC. He also submitted that twice the investigation was carried out by the Investigation Officers and no case against the accused Aslam, much less against the present petitioner who was not named anywhere, was made out and still the trial court has issued the warrant of arrest taking cognizance for the offence under Section 392 of IPC. However, the learned counsel Mr. Gajendra Vyas for the respondent No.2-complainant has submitted that the court having found prima facie case against the petitioner, who was the Manager of L and T Company , has rightly issued the warrant of arrest. According to him the accused Aslam had acted highhandedly at the instance of the petitioner and therefore the petitioner was also liable for the alleged offence. Having regard to the submissions made by the learned counsel for the parties and to the documents on record more particularly the F.Rs., submitted by the Investigating Officers and to the impugned order passed by the trial court, it appears that the initial complaint was filed by the respondent No.2-complainant against one accused named Aslam and there was no whisper of allegation against the present petitioner, who was the Manager of L and T Company. During the course of investigation also the involvement of the present petitioner has not been made found by the concerned Investigating Officers, however the trial court has taken the cognizance for the offence under Section 392 of IPC against the present petitioner alongwith the said accused Aslam, without any material on record. It is also pertinent to note that there was no charge alleged against the present petitioner for the offence of criminal conspiracy under Section 120-B of IPC. In absence of any allegation against the petitioner in the FIR and in absence of any material on record, the trial court could not have and should not have taken cognizance of the offence under Section 392 of IPC against the present petitioner. The order passed by the trial court being ex-facie illegal, the same deserves to be set aside. In that view of the matter, the petition deserves to be allowed. The impugned order dated 2.2.11 passed by the trial court in final report No. 132/09 (FIR No. 334/09) is quashed and set aside. The petition is allowed accordingly. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. ;