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2010 DIGILAW 548 (GUJ)

Kaumudiben Harshadbhai Joshi v. State of Gujarat

2010-11-18

HARSHA DEVANI

body2010
JUDGMENT HARSHA DEVANI, J. (1) BY this application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (the Code), the applicant has challenged order dated 23rd June, 2004 passed by the learned Sessions Judge, Surat, in Criminal Revision Application No.17 of 2004 and prays that the order dated 03rd January, 2004 passed by the learned Magistrate in Private Criminal Case No.6 of 2004 be confirmed. (2) The facts of the case stated briefly are that the complainant, the respondent No.2 herein, lodged a complaint in the Court of the learned Judicial Magistrate First Class, Surat against the applicants herein alleging commission of the offence punishable under Sections 34, 114, 403, 406 and 420 of the Indian Penal Code on 3rd January, 2004 which came to be registered as Criminal Case No.6 of 2004. The learned Magistrate, after examining the complainant on oath, found that the dispute between the complainant, the accused and the Bank is purely of a civil nature and accordingly dismissed the complaint in exercise of powers under Section 203 of the Code. Being aggrieved, the complainant preferred a revision application before the learned Sessions Judge, Surat, who vide the impugned order dated 23rd June, 2004 allowed the revision application and remanded the matter to the learned Joint Civil Judge (J.D.) and Judicial Magistrate First Class, Surat with a direction to issue process against the accused and decide the complaint in accordance with law. Being aggrieved, the applicants have moved the present revision application challenging the said order passed by the learned Sessions Judge. Mr. K.B. Anandjiwala, learned Advocate for Mr. U.M. Panchal, learned Advocate for the applicants invited attention to the allegations made in the complaint to point out that no offence as alleged can be stated to have been made out on the basis of the averments made in the complaint. Referring to the impugned order made by the learned Judicial Magistrate, it was submitted that upon examining the complainant on oath, it is apparent that no offence as alleged had been made out and as such, the learned Judicial Magistrate having found that the dispute involved was purely civil in nature, was justified in dismissing the complaint under Section 203 of the Code. It was submitted that in the circumstances, the learned Sessions Judge was not justified in interfering with the discretion . It was submitted that in the circumstances, the learned Sessions Judge was not justified in interfering with the discretion . exercised by the learned Judicial Magistrate and directing issuance of process against the applicants herein. On the merits of the case, it was submitted that the applicants had hypothecated the machinery and the goods to the Panchsheel Co-operative Bank and had sold the same after obtaining the permission of the Bank and as such, no offence under Section 420 of the Indian Penal Code can be said to have been made. It was submitted that there was no entrustment of property by the Bank so as to attract the provisions of Section 406 IPC. According to the learned Advocate, if the applicants had used the amount received upon sale of hypothecated machinery and goods and not deposited the same with the Bank, it was the Bank which would be the aggrieved party. The respondent No.2 -complainant who had only stood as a guarantor cannot be said to be an aggrieved party. It was further submitted that the complaint in question has been tiled with an oblique purpose and that despite the fact that the son of the complainant was a partner of the firm, he is not impleaded as an accused. (3) ON the other hand, Mr. S.D. Suthar, learned Advocate for Mr. Nirav Majmudar, learned Advocate for the respondent No.2 vehemently opposed the application. Inviting attention to the order made by the learned Judicial Magistrate, it was submitted that the learned Judicial Magistrate upon merely examining the complainant on oath had dismissed the complaint. It was contended that despite the fact that in the complaint the complainant had named two witnesses and had also stated that he would be producing other witnesses, the learned Magistrate had not granted any opportunity to the complainant to produce any witnesses. In the circumstances, the learned Magistrate was not justified in discharging the accused under Section 203 without affording opportunity to the complainant to produce the witnesses. In the circumstances, the learned Magistrate was not justified in discharging the accused under Section 203 without affording opportunity to the complainant to produce the witnesses. Inviting attention to the provisions of Section 202 of the Code, it was submitted that it was mandatory for the learned Magistrate to either inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused under Section 202 of the Code. It was submitted that in the facts of the present case, the learned Judicial Magistrate having failed to cause any such inquiry to be made, the impugned order dismissing the complaint under Section 203 was without jurisdiction. In support of his submissions, the learned Advocate placed reliance upon a decision of the Madras High Court in the case of Ashok Kumar v. Mariappan, 1993 Criminal Law Journal 2780, and more particularly to the contents of paragraph 6 thereof to submit that for the purpose of satisfying himself that there is sufficient ground for proceeding under Section 203 of the Code, the Magistrate is entitled to consider the evidence taken by him or recorded in an inquiry under Section 202 or statements made in an investigation under that Section. It was accordingly contended that for the purpose of arriving at a conclusion that there is sufficient ground for proceeding, the learned Magistrate is required to consider the result of the inquiry made under Section 202 of the Code and as such, it is mandatory for the learned Magistrate to direct an inquiry as envisaged under Section 202 of the Code and that without making such inquiry and considering the report of such inquiry, it is not permissible for the Magistrate to dismiss the complaint under Section 203 of the Code. Reliance was also placed upon the decision of the Apex Court in the case of Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another, AIR 1963 SC 1430 , on which reliance has been placed by the Madras High Court in the above referred decision. Reliance was also placed upon the decision of the Apex Court in the case of Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another, AIR 1963 SC 1430 , on which reliance has been placed by the Madras High Court in the above referred decision. Reliance was also placed upon the decision of the Supreme Court in the case of H.S. Bains v. The State (Union Territory of Chandigarh), AIR 1980 SC 1883 , and more particularly to the contents of paragraph 6 thereof to submit that for the purpose of forming an opinion as to whether there is sufficient ground for proceeding or dismissing a complaint, it is incumbent for the Magistrate to consider the statements on oath of the complainant and the witnesses. In case the Magistrate takes cognizance under Section 200 of the Code, he is required to direct an inquiry under Section 202 of the Code and it is only thereafter that he can dismiss a complaint. (4) Next, it was submitted that in any case, while dismissing the complaint under Section 203 of the Code, the Magistrate is required to record reasons for doing so, which reasons should reflect that there is no sufficient ground for proceeding. That in the facts of the present case, no reason has been assigned by the learned Magistrate that there was no sufficient ground for proceeding and as such, the order passed by the learned Magistrate being contrary to the provisions of Section 203 of the Code has rightly been set aside by the learned Sessions Judge. On the merits of the case, it was submitted that the applicants herein had, in collusion with the officers of the Bank, sold the machinery and goods which had been hypothecated to the Bank and instead of depositing the said amount in the Bank for repayment of the loan obtained from the Bank, had misappropriated the same as a result of which, the complainant who had stood as surety would become liable to pay the said amount. That prior to selling the hypothecated goods, the complainant was not informed and that despite issuance of notice by the complainant, no steps had been taken by the applicants to pay the amount to the Bank. That prior to selling the hypothecated goods, the complainant was not informed and that despite issuance of notice by the complainant, no steps had been taken by the applicants to pay the amount to the Bank. It was submitted that the entire exercise was carried out with a view to defeat the rights of the complainant inasmuch as the property which was hypothecated against the loan obtained by the applicants was sold and the amount was misappropriated and the amount was now sought to be recovered against the properties of the complainant. It was submitted that in the circumstances, the offence as alleged is clearly made out and as such, even otherwise the learned Judicial Magistrate was not justified in holding that the dispute was purely civil in nature and dismissing the complaint. (5) In rejoinder, Mr. Anandjiwala, learned Advocate for the applicants has invited attention to the provisions of Section 200 of the Code to submit that the Magistrate taking cognizance of an offence on a complaint is required to examine on oath the complainant and the witnesses present, if any. If upon examining the complainant and the witnesses, if any, the learned Magistrate is satisfied that there is no ground for proceeding, it is always open for the Magistrate to dismiss the complaint under Section 203 of the Code. On a plain reading of the provisions of Section 200 as well as Section 202 of the Code, it is apparent that resorting to the provisions of Section 202 is not mandatory and that it is only after examining the complainant and the witnesses present, if any, under Section 200 of the Code, if the Magistrate thinks it fit, he may cause an inquiry to be made as envisaged under Section 202 of the Code. However, if upon examining the complainant on oath, the learned Magistrate is satisfied that there is no ground for proceeding, it is open for him to dismiss the complaint under Section 203 of the Code without referring to the provisions of Section 202 of the Code. The learned Advocate has also placed reliance upon the decision of the Supreme Court in the case of Shivjee Singh v. Nagendra Tiwary, 2010 GLHEL SC 48554. The learned Advocate has also placed reliance upon the decision of the Supreme Court in the case of Shivjee Singh v. Nagendra Tiwary, 2010 GLHEL SC 48554. Attention was invited to the decision of the Supreme Court in the case of H.S. Bains v. The State (supra) to submit that the Court has held that if after referring to the statements of the complainant and witnesses present under Section 200, in the opinion of the Magistrate, there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. It was submitted that in the circumstances, the controversy involved in the present case is no longer res integra as the same stands concluded by the aforesaid decision which clearly holds that it is permissible for the learned Magistrate to dismiss the complaint if he, after considering the statements of the complainant and the witnesses present under Section 200, is satisfied that there is no ground for proceeding. Reliance was placed upon a decision of the Kerala High Court in the case of Biju Purushothaman v. The State of Kerala and others, 2008 Criminal Law Journal 4488, wherein the Court had held that after the stage of examination under Section 200 of the Code but before the stage of inquiry or investigation under Section 202 of the Code, the appropriate mode of terminating the proceedings may be by way of rejection of the complaint. (6) As regards the contention that the learned Magistrate has not assigned any reasons to the effect that there was no sufficient ground for proceeding, the learned Advocate has submitted that the learned Judicial Magistrate has clearly stated that the dispute involved in the present case is purely of a civil nature and as such, it cannot be said that the learned Magistrate has not assigned any reason's as envisaged under Section 203 of the Code. Having regard to the submissions advanced by the learned Advocates tor the parties, the main controversy that arises for determination is as to whether it was permissible for the learned Judicial Magistrate to dismiss the complaint in exercise of powers under Section 203 of the Code without causing any inquiry to be made under Section 202 of the Code. Having regard to the submissions advanced by the learned Advocates tor the parties, the main controversy that arises for determination is as to whether it was permissible for the learned Judicial Magistrate to dismiss the complaint in exercise of powers under Section 203 of the Code without causing any inquiry to be made under Section 202 of the Code. (7) Section 200 of the Code provides for "Examination of complainant" and lays down that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Section 202 of the Code, as it stood at the relevant time, makes provision for "Postponement of issue of process" and lays down that any Magistrate, upon receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. (8) ON a plain reading of Section 200 of the Code, it is apparent that a Magistrate taking cognizance of an offence on a complaint is required to examine on oath (1) the complainant and (2) the witnesses present, if any. Upon such examination, the substance of such examination is required to be reduced to writing and is required to be signed by the complainant, by the witnesses and by the Magistrate. In the facts of the present case, the learned Judicial Magistrate has upon taking cognizance of the offence, examined the complainant on oath and reduced the substance of such examination in writing which is signed by both the complainant as well as the learned Magistrate. From the facts emerging on record, it appears that at the time of examining the complainant on oath, no other witnesses were present. Section 200 of the Code requires the Magistrate to examine on oath the complainant and the witnesses present, if any. From the facts emerging on record, it appears that at the time of examining the complainant on oath, no other witnesses were present. Section 200 of the Code requires the Magistrate to examine on oath the complainant and the witnesses present, if any. The said Section does not require the Magistrate to call upon the complainant to produce witnesses for further examination before proceeding any further. Section 203 of the Code which makes provision for "Dismissal of complaint" lays down that if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case, he shall briefly record his reasons for doing so. On a plain reading of the said provision, it is apparent that before dismissing the complaint under Section 203, the learned Magistrate is required to consider the statements on oath, if any, of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202 of the Code. The said provision nowhere lays down that it is mandatory for the learned Magistrate to consider the result of the inquiry or investigation under Section 202. (9) Under the scheme of the Code of Criminal Procedure, the procedure to be adopted when a complaint is lodged, as laid down in Section 200 to Section 203 of the Code is :- 1. Under Section 200, it is incumbent on the Magistrate taking cognizance of a complaint to examine on oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complaint. The object is to test whether the allegation makes out a prima facie case to enable him to issue process. 2. If he finds that the facts constitute an offence under law, it is incumbent upon him to issue process forthwith. 3. If the learned Magistrate finds that no offence is made out, it is equally his duty to dismiss the complaint. 4. 2. If he finds that the facts constitute an offence under law, it is incumbent upon him to issue process forthwith. 3. If the learned Magistrate finds that no offence is made out, it is equally his duty to dismiss the complaint. 4. If upon examining the complainant and the witnesses present, if any, the learned Magistrate still deems it fit to cause further inquiry to be made prior to issuance of process or dismissing the complaint, he may postpone the issue of process pending further inquiry under Section 202. He can then inquire into the case himself or direct an investigation to be made by a Police Officer or by any private person he thinks fit. In such a situation, after considering the statements on oath made by the complainant and his witnesses, if any, as well as the result of the inquiry made under Section 202, the learned Magistrate may if he forms an opinion that an offence is made our, issue process under Section 204 and if he finds that there is no sufficient ground for proceeding, dismiss the complaint under Section 203 of the Code. (10) The Apex Court in the case of H. S. Bains v. The State (supra) on which reliance has been placed on behalf of the respondent No.2 has held as follows :- "6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion, there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. However, if he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding, xxx" Thus, the Apex Court has laid down that a Magistrate may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200 of the Code. Thereafter, if in his opinion, there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. The decision does not lay down that it is mandatory for the Magistrate to postpone the issue of process and cause an inquiry to be made under Section 202 of the Code before dismissing the complaint under Section 203 of the Code. In the circumstances, the said decision does not carry the case of the respondent No.2-complainant any further. On the contrary, the said decision decides the issue in favour of the applicants. (11) The Apex Court in the case of A. R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 has in paragraph 3 of the said decision held as follows :- "When a private complaint is filed, the Court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 CrPC. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the Court to judicially determine whether a case is made out for issuing process. When it is said that Court issues process, it means the Court has taken cognizance of the offence and has decided to initiate the proceeding and as a visible manifestation of taking cognizance, process is issued which means that the accused is called upon to appear before the Court. This may either take the form of a summons or a warrant, as the case may be. This may either take the form of a summons or a warrant, as the case may be. It may be that after examining the complainant and his witnesses, the Court in order to doubly assure itself may postpone the issue of process, and call upon the complainant to keep his witnesses present. The other option open to the Court is to direct investigation to be made by a Police Officer. And if the offence is one covered by the 1947 Act, the investigation, if directed, shall be according to the provision contained in Section 5-A. But it must be made distinctly clear that it is neither obligatory to hold the inquiry before issuing process nor to direct the investigation of the offence by Police. The matter is in the judicial discretion of the Court and is judicially reviewable depending upon the material disclosed by the complainant in his statement under oath under Section 200, called in the parlance of criminal Courts verification of the complaint and evidence of witnesses it any." (12) In the light of the principles hud down in the aforesaid decision, it is apparent that after examining the complainant on oath and examining the witnesses present, if any, means that the witnesses not present need not be examined. In the circumstances, the contention raised by the learned Advocate for the respondent No.2-complainant that the complainant was not given any opportunity of examining his witnesses, being contrary to the provisions of Section 200 of the Code, is misconceived. Moreover, the Court has categorically held that it is left to the judicial discretion of the Court whether on examining the complainant and the witnesses, if any, as contemplated by Section 200 to issue process or to postpone the issue of process. This discretion which the Court enjoys cannot be circumscribed or denied by making it mandatory upon the Court either to hold inquiry or direct investigation. Such an approach would be contrary to the statutory provision. In the circumstances, the controversy raised by the learned Advocate for the respondent stands concluded by the aforesaid decisions of the Apex Court against respondent No.2-complainant and as such, the said contention does not merit acceptance. Such an approach would be contrary to the statutory provision. In the circumstances, the controversy raised by the learned Advocate for the respondent stands concluded by the aforesaid decisions of the Apex Court against respondent No.2-complainant and as such, the said contention does not merit acceptance. In the light of the aforesaid, considering the language of the provisions of Section 200, Section 202 and Section 203 of the Code as well as in light of the above referred decisions of the Apex Court, this Court is of the view that it is permissible for the learned Judicial Magistrate to dismiss a complaint under Section 203 of the Code, if after taking cognizance of an offence and upon examining the complainant and the witnesses present, if any. on oath, the learned Magistrate finds that there is no sufficient ground for proceeding. (13) Examining the case on merits, on a bare perusal of the averments made in the complaint, as well as considering the notice issued by the respondent No.2 - complainant to the applicants herein, it is apparent that the dispute in question is purely civil in nature and no offence under Sections 403, 406 or 420 of the Indian Penal Code can be stated to have been made out on the allegations made therein. In the circumstances, the learned Judicial Magistrate was right in holding that the complaint revealed only a civil dispute between the accused and the Bank and was, therefore, justified in dismissing the complaint under Section 203 of the Code. The contention that the learned Magistrate has not assigned any reasons to the effect that there was no sufficient ground for proceeding is also misconceived inasmuch as all that Section 203 of the Code says is that if the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall briefly record his reasons for doing so while dismissing the complaint. Once the learned Magistrate briefly records reasons for dismissing the complaint, it goes without saying that the said reasons are the reasons on account of which he finds that there is no sufficient ground for proceeding. In the circumstances, the said contention also does not merit acceptance. Once the learned Magistrate briefly records reasons for dismissing the complaint, it goes without saying that the said reasons are the reasons on account of which he finds that there is no sufficient ground for proceeding. In the circumstances, the said contention also does not merit acceptance. (14) A perusal of the impugned order passed by the learned Sessions Judge indicates that the learned Sessions Judge has misdirected herself in holding that there is breach of the provisions of principles of natural justice. Once the learned Judicial Magistrate had come to the conclusion that no offence is made out and that the dispute was civil in nature, there was no question for proceeding further for making an inquiry under Section 202 of the Code. On the facts emerging on record, it is not possible to state that the discretion exercised by the learned Judicial Magistrate was in any manner unreasonable or perverse so as to warrant interference in exercise of revisional jurisdiction by the learned Sessions Judge. Moreover, in case the learned Sessions Judge was of the view that due inquiry had not been made by the learned Magistrate, the learned Sessions Judge could have only remanded the matter to the learned Judicial Magistrate to decide the same in accordance with law. However, no direction to issue process against the accused could have been issued. In the circumstances, the impugned order dated 23rd June, 2004 made by the learned Sessions Judge being contrary to the statutory provisions cannot be sustained. For the foregoing reasons, the application succeeds and is accordingly allowed. The impugned order dated 23rd June, 2004 made by the learned Sessions Judge, Surat, in Criminal Revision Application No.17 of 2004 is hereby quashed and set aside. Consequently, the order dated 30th June, 2004 made by the learned Joint Civil Judge (J.D.), Surat directing issuance of process is also set aside. Accordingly, the order dated 03 rd January, 2004 made by the learned Joint Civil Judge (J.D.), Surat in Private Criminal Complaint No.6 of 2004 stands restored. Rule is made absolute accordingly. Rule made absolute.