Magistrate not to entertain an application under Section 156 (3) of Cr.PC, when complaint was not supported by an affidavit: SC

The Supreme Court ruled that the magistrate not to entertain an application under Section 156 (3) of Cr.PC, when the complaint was not supported by an affidavit.


The appellant on one hand and respondent on the other hand, entered into various Agreements for Sale with respect to properties situated at Bangalore. According to the appellants, the   amounts as mentioned in the agreements, were paid by them as consideration by three cheques, one of them drawn from the account of appellant another one from account of M/s. S.S.R.V   Trans Solutions and other one from the account of M/s. Shobha Tours and Travels, which are operated by appellant. All these three cheques were bearer cheques. It is the case of appellants that all the cheques were encashed by the respondent. After receipt of the payments, the respondent was avoiding to get the Sale­deed registered.


The division bench of Justice B.R. Gavai and Justice Krishna Murari found that in the present case, though civil suits have been filed with regard to the same transactions and though they are contested by the respondent by filing a written statement, he has chosen to file a complaint under Section 156 (3) of the Cr.P.C. after a period of one and half years from the date of  filing of written statement  with an ulterior motive of harassing the appellants. 

The court found that the Magistrate, while passing the order under Section 156 (3) of the Cr.P.C., had totally failed to consider the law laid down by the court.

The court noted that the complainant/respondent himself has made averments with regard to the filing of the Original Suit. 

The court said that in any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156 (3) of the Cr.P.C.

The court said that the High Court has also failed to take into consideration the legal position as has been enunciated by this court in the case of Priyanka Srivastava v. State of U.P., and has dismissed the petitions by  merely observing that serious allegations are made in the complaint.

The court set ­aside the judgments and orders of the High Court and held that continuation of the present proceedings would amount to nothing but an abuse of process of law. 

Case title: Babu Venkatesh and Ors v/s State of Karnataka and Anr 

Citation: CRIMINAL APPEAL NO. 252 OF 2022

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