Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 2156 (ALL)

PRASANNA KUMAR DASH v. STATE OF U. P.

2012-09-16

SHRI KANT TRIPATHI

body2012
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Rejoinder-affidavit filed on behalf of the applicant is taken on record. Heard Mr. Ajal Krishna for the applicant and Sri Dharmendra Singhal for the respondent No. 2 and learned A.G.A. for the respondent No. 1 and perused the record. This is an application under Section 482 Cr.P.C. for quashing the proceedings of Complaint Case No. 167 of 2008 (Oriental Ceramics and Industries Ltd. v. Prasanna Kumar Dash), under Section 418 I.P.C., pending in the Court of Chief Judicial Magistrate, Bulandshahar. 2. It appears that the respondent No. 2, Oriental Ceramics and Industries Ltd. filed a complaint against the applicant in the Court of Chief Judicial Magistrate, Bulandshahar with the allegations that the applicant entered into an agreement with the respondent No. 2 on 26.9.2005, according to which, the applicant was sent to Italy for a training at the expense of the respondent No. 2. During the training the respondent No. 2 spent a huge amount on the applicant. It is also alleged that the applicant had agreed that he would serve for about three years under the respondent No. 2 so that the skill and knowledge acquired by him in the training may be utilised by the respondent No. 2 for upliftment of its business but the applicant dishonestly left the job and took away the relevant papers relating to drawing design technology. The learned Chief Judicial Magistrate examined Sri Gurwinder Singh Bhatia, the Deputy General Manager of the respondent No. 2 under Section 200 Cr.P.C. and also held an inquiry under Section 202 Cr.P.C. and recorded the statement of P.W.1 Subodh Sharma. On the basis of the materials collected under Section 200 and 202 Cr.P.C. the learned Chief Judicial Magistrate, Bulandshahar passed the order dated 3.4.2008 issuing a process to the applicant in respect of the offence punishable under Section 418 I.P.C. Counter-affidavit and rejoinder-affidavit have been exchanged. 3. Mr. Ajal Krishna submitted that the dispute between the applicant and the respondent No. 2 is of civil nature. If the applicant committed any breach of contract, it was open to the respondent No. 2 to file appropriate legal proceedings for recovery of damages, if any, due to the breach. Sri Ajal Krishna further submitted that there is no material to support that the intention of the applicant was dishonest at the beginning of the contract. If the applicant committed any breach of contract, it was open to the respondent No. 2 to file appropriate legal proceedings for recovery of damages, if any, due to the breach. Sri Ajal Krishna further submitted that there is no material to support that the intention of the applicant was dishonest at the beginning of the contract. In fact, the applicant served for several months and then left the job. Therefore, no dishonest intention at the inception of the agreement on the part of the applicant can be inferred. 4. Mr. Dharmendra Singhal, on the other hand, submitted that the applicant, after taking the training, did not serve under the respondent No. 2 and join other job, therefore, his intention was dishonest from the very beginning. 5. In the case of V.Y. Jose and another v. State of Gujarat and another, (2009) 3 SCC 78 , the Apex Court has held that for the purpose of constituting an offence of cheating the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise, no offence under Section 420 IPC can be said to have been made out. In para 21 and 28 the Apex Court further observed : “21. There exists a distinction between pure contractual dispute of a civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in the absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the Court should not hesitate to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. ........... 28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. The superior Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of Court. 28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject-matter of a criminal offence, the latter being not a short cut of executing a decree which is non-existent. The superior Courts, with a view to maintain purity in the administration of justice, should not allow abuse of the process of Court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial Courts.” The aforesaid principles have been reiterated in S.V.L. Murthy v. State represented by CBI, Hyderabad, (2009) 6 SCC 77 . In that case the Apex Court has held that one of the ingredients of cheating, as defined in Section 415 IPC, is existence of an intention to cheat at the time of making initial promise or existence thereof from the very beginning of formation of contract. 6. Mr. Ajal Krishna, the learned Counsel for the petitioner further relied on Alpic Finance Ltd. v. P. Sadasivan and another, (2001) 3 SCC 513 . In that case the Apex Court has held that when somebody suffers injury to his person, property or reputation, he has remedies both in civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. It was further held that in order to show existence of a criminal charge it must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. 7. Therefore, it was incumbent upon the respondent No. 2 to specifically allege that the intention of the applicant was dishonest at the time of the agreement. If his intention was not dishonest on that date and became dishonest subsequently, his intention, in that event, cannot be held to be dishonest. It is nowhere stated in the complaint that the applicant, after returning from the training, did not join the respondent’ company and joined other job. The complaint is silent as to whether applicant served for any period under the respondent’s company or not, after returning from the training. In regard to this omission in the complaint, no query was put to Sri. The complaint is silent as to whether applicant served for any period under the respondent’s company or not, after returning from the training. In regard to this omission in the complaint, no query was put to Sri. G.S. Bhatia who was examined under Section 200 Cr.P.C. nor to the witness examined under Section 202 Cr.P.C. In my opinion, in this case it was necessary and expedient for the learned Chief Judicial Magistrate to find out whether or not the intention of the applicant was dishonest form the very beginning. In order to decide this question it was very relevant whether the applicant, after returning from the training served for any period with the respondent’s company or not. Therefore, the learned Chief Judicial Magistrate was required in law to put relevant questions to Sri G.S. Bhatia and the witness Subodh Sharma for finding out the truth in this regard. 8. Passing a summoning order in a criminal case is a serious matter, therefore, criminal law cannot be set into motion in a routine manner. It is not proper for the Magistrate to set the criminal law into motion merely because the complainant has examined himself and supported the complaint or has examined two or more witnesses in support of the complaint allegations. The summoning order must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto. It is the duty of the Magistrate to examine the nature of allegations made in the complaint and the evidence, both oral and documentary, before passing the summoning order. The Magistrates are not silent spectators at the time of recording the statement of the complainant and his witnesses. Therefore, they have to carefully examine evidence brought on record and may themselves put relevant questions to the complainant and the witnesses to find out truth in the complaint and also to find out whether or not a case for summoning the accused is made out. It is true that at the stage of passing a summoning order the Magistrate is not required to weigh the evidence meticulously as if he were the trial Court but he has to record a prima facie satisfaction to see as to whether there is sufficient ground to proceed with the complaint or not. 9. It is true that at the stage of passing a summoning order the Magistrate is not required to weigh the evidence meticulously as if he were the trial Court but he has to record a prima facie satisfaction to see as to whether there is sufficient ground to proceed with the complaint or not. 9. The aforesaid principles have been propounded in the case of Pepsi Food Ltd. and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749 . In that case the Apex Court has observed in para 28 as follows : “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought to record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” In view of the aforesaid reasons, the learned Chief Judicial Magistrate has not held an inquiry under Section 202 Cr.P.C. in a correct and proper manner and proceeded to pass the summoning order mechanically. Therefore, the summoning order cannot be upheld. The petition is allowed, summoning order dated 3.4.2008 is quashed. The learned Chief Judicial Magistrate, Bulandshahar is directed to proceed a fresh with the complaint in the light of the observations made hereinbefore and pass an appropriate order in accordance with law. ——————