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2004 DIGILAW 2536 (ALL)

SUNIL GUPTA v. STATE OF U P

2004-12-16

UMESHWAR PANDEY

body2004
UMESHWAR PANDEY, J. Heard learned Counsel for the revisionists and learned A. G. A. 2. The revisionists challenge the order dated 29-5-1997 passed by the Special Chief Judicial Magistrate, Meerut. The Court below on a criminal complaint filed against the revisionist had taken cognizance of the offences punishable under Sections 406 and 420 IPC. The complaint discloses certain facts regarding cheating and criminal breach of trust committed by the accused persons against the complainant. The learned Magistrate, after recording the evidence advanced from the side of the complainant under Sections 200/202 of Cr. P. C. (for short the code), had passed the order summoning the revisionist- accused in the case and that order had been challenged by filing certain objections stating that as the complaint was not maintainable and the Court should not have issued proceed of summons etc. against the accused persons. In these objections more than one grounds were taken for non-maintainability of the compliant. The Court below, while considering the merits of the complaint as well as the objections, found that the contentions of the accused, as made in the objections, had absolutely no force and by the impugned order the learned Magistrate had dismissed it. 3. Aggrieved with the aforesaid order, this revision has been preferred by the accused persons. 4. Learned Sr. Advocate, Sri G. S. Chaturvedi, submits that the complaint did not in fact, disclose the commission of offences for which the accused had been summoned and as such, there being no strength in the complaint, the Court below should have dismissed it by recalling or ignoring the order whereby it had summoned the revisionists accused in the trial. 5. In reply to the aforesaid submission of the learned Counsel, it has been submitted from the side of the opposite party that the objections, which were made on behalf of the accused persons, were not worth hearing at that particular stage of the case and if at all there was any occasion for letting of the accused on account of even non-maintainability of the complaint, it was available only at the stage of Section 245 of the Code and not before that. 6. 6. The learned Counsel has also emphasised that the lis between the parties, even if, it is of the civil nature and some offence is also found to have been committed in the facts of the case by either of the parties, a criminal action cannot be said to be barred at the instance of the aggrieved party. In order to fortify his contentions, the learned Counsel appearing for the opposite party has placed reliance upon the case law of Adalat Prasad v. Rooplal Jindal & Ors. , 2005 (1) JIC 164 (SC) : JT 2004 (7) SC 243 ; Rajendra Kumar Sitaram Pandey & Ors. v. Uttam & Anr. , 1993 (3) SCC 134 ; K. K. Patel & Anr. v. State of Gujarat & Anr. , 2000 (2) JIC 714 (SC) : JT 2000 (6) SCC 195 ; V. C. Shukla v. State through C. B. I. { 1980 (2) SCR 380 } Parmatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 (SC) 876 , Subramanium Sethuraman v. State of Maharashtra & Anr. , 2005 (1) JIC 122 (SC) : JT 2004 (8) SC 220 and Madhu Limaye v. State of Maharashtra, 1978 (1) SCR 749 . 7. As regards the dispute being of civil nature and whether a criminal action will lie in that particular matter or not, the view of this Court is settled in the case of Lt. Col. (retired) Propkar Singh & Ors. v. State of U. P. & Anr. , 2003 (46) ACC 483. In the aforesaid case, relying upon the case law of Kamla Devi Agarwal v. State of West Bengal, 2002 (1) JIC 5 (SC) : 2002 SCC (Crl.) 200, this Court has held that merely because of civil claim being also maintainable, it does not mean that the criminal complaint cannot be filed and proceeded with and the same has to be proceeded with in accordance with the procedure prescribed under the Code of Criminal Procedure and the pendency of civil action cannot be made basis for quashing of the criminal complaint. The nature and scope of both civil and criminal cases and the standard of proof required are different and distinct. A civil dispute is decided on the basis of the probabilities whereas a criminal case has to be decided by adopting a distinct standard of proof of beyond reasonable doubt. The nature and scope of both civil and criminal cases and the standard of proof required are different and distinct. A civil dispute is decided on the basis of the probabilities whereas a criminal case has to be decided by adopting a distinct standard of proof of beyond reasonable doubt. Obviously, as has been submitted by the learned Counsel for the revisionists, there is definite dispute of civil nature existing between the parties regarding payment of money under a contract and non-fulfillment of the promise by the other party, yet it cannot be said that if offence of cheating and criminal breach of trust is alleged to have been committed and the evidence made available before the Court under Sections 200/202 of the Code satisfies the Magistrate to issue process of summons against the accused, such order was erroneous in law and the complaint cannot be said to be maintainable. In fact, the accused revisionists, when they appeared before the Court below for the trial, could wait for the stage of Section 245 of the Code to come and then claim a relief of discharge. The Magistrate could not provide any relief of them before he had recorded the evidence advanced from the side of the complainant under Section 244 of the Code. 8. Even otherwise also, the Magistrate, in view of case law the Adalat Prasad (supra) was not competent to recall his order passed under Section 204 of the Code summoning the accused and taking cognizance for the offence. The Full Bench decision of this Court in Ranjeet Singh & Ors. v. State of U. P. & Anr. , 2000 (1) JIC 399 (All) (FB) : 2000 (40) ACC 342, is also quite specific in this regard. A Magistrate does not possess jurisdiction to recall his order passed in a case summoning the accused personss under Section 204 of the Code. v. State of U. P. & Anr. , 2000 (1) JIC 399 (All) (FB) : 2000 (40) ACC 342, is also quite specific in this regard. A Magistrate does not possess jurisdiction to recall his order passed in a case summoning the accused personss under Section 204 of the Code. Para-15 of the judgment of Adalat Prasad (supra) is quite relevant in this regard and is reproduced below: "it is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Code. " 9. The learned Magistrate in the present case has rejected the objections filed by the accused revisionists against his order passed under Section 204 of the Code and in view of the decisions, referred to above, when the Magistrate was not himself legally competent to recall/ review his order passed under Section 204 of the Code, the impugned order whereby he has rejected those objections cannot be found fault with by the accused persons for the purposes to challenge it in the present revision. The relief, if any, can be available to the accused revisionists in the present case relating to the merits or demerits of the case set up against them in the complaint, only when the case reaches the stage of Section 245 of the Code and not before that. The impugned order is not found suffering from any legal or procedural infirmity as to call for an interference in this revision, which is without merit and is hereby dismissed. .