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2013 DIGILAW 2966 (MAD)

Abdur Rahman v. Adam Mohomed

2013-08-16

R.SUBBIAH

body2013
Order 1. The present criminal original petitions have been filed to call for the records in C.C.Nos.1741, 1742, 1744, 1743, 1745 and 1746 of 2012 respectively on the file of Fast Track Court No.II, Egmore, Chennai, and quash the same in so far as the petitioner is concerned. Petitioner is one and the same in all the petitions. 2. Since the issue involved in all the original petitions is interlinked with each other, all these petitions are disposed of by way of common order. 3. All the original petitions have been filed by one Abdur Rahman, Proprietor of 'Real Foundation', who has been arrayed as accused in the complaints filed by the respondent in these petitions for an offence punishable under section 138 of Negotiable Instruments Act. Respondent in Crl.O.P.Nos.15567 and 15568 of 2013 is one Adam Moomed Sait and the respondents in Crl.O.P.Nos.15569 to 15572 of 2013 are his two sons, daughter and wife respectively. Respondents are the respective complainant in C.C.Nos.1741, 1742, 1744, 1743, 1745 and 1746 of 2012 on the file of Fast Track Court II, Egmore, Chennai. 4. Case of the complaints is that in due course of business, the petitioner herein/accused had received various investment from the respondent in crl.O.P.Nos.15567 and 15568 of 2013 (Adam Mohomed Sait) and his family members and promised to return the same; but the accused has not reverted back the same, as promised and finally, the accused has entered into a sale deed for a flat, which is not in a complete stage. Since the accused has not finished project within a specified period and also not given the possession of the said flat and various other dues, the complainant Adam Mohomed Sait had preferred a complaint on 23.03.2006 with the Commissioner of Police, Egmore, Chennai to take action against him. Since no action was taken, the said complainant filed Crl.M.P.No.2955 of 2008 on the file of Additional Chief Metropolitan Magistrate, Egmore, Chennai, wherein it was ordered to investigate and file a report. Meanwhile, a Memorandum of Understanding was reached on 15.10.2008 between the parties and as per clause 3 of which, a sum of Rs.50 lakhs was to be paid by the accused within five months i.e. before 15.03.2009 and thereby, the complainant had to cancel the sale registration of the said flat. Meanwhile, a Memorandum of Understanding was reached on 15.10.2008 between the parties and as per clause 3 of which, a sum of Rs.50 lakhs was to be paid by the accused within five months i.e. before 15.03.2009 and thereby, the complainant had to cancel the sale registration of the said flat. But, the accused paid only Rs.15 lakhs and gave four post-dated cheques for Rs.35 lakhs bearing Cheque No.017089 dated 30.11.2010 knowing fully well that he did not have sufficient balance in his account. Thereafter, as requested by the accused, the said complainant has not presented the cheque and finally, the accused had promised the complainant to pay the said amount by way of 6 cheques and accordingly, the cheques were issued in the following manner: Ch. No. Date Amount Bank Cheque issued in whose Rs. Favour 570125 15.06.2011 12,39,600/- Bank of Barda, Egmore Adam Mohomed Sait (C.C. No. Chennai 1741/2012) 570130 15.06.2011 2,57,400/- Bank of Barda, Egmore Adam Mohomed Sait (C.C. No. 1742/2012) 570128 15.06.2011 6,85,800/- Bank of Barda, Egmore Fahad Adam Sait, son of Adam Mohomed Sait (C.C.No. 1744/ 2012) 570127 15.06.2011 2,34,400/- Bank of Barda, Egmore Asad Adam Sait, Son of Adam Mohomed Sait (C.C. NO. 1743/ 2012) 570129 15.06.2011 91,800/- Bank of Barda, Egmore Sarah Adam Sait, daughter of Adam Mohomed Sait (C.C.No. 1745/2012) 570126 15.06.2011 9,91,000/- Bank of Barda, Egmore Nausheen Adam Sait, wife of Adam Mohomed Sait (C.C.No. 1746/2012) 5. When the said complainant and his family members presented the said cheques for encashment through their banker, the same have been dishonoured with a memo "funds insufficient" and as requested by the accused, they again re-presented the cheques and the same were again returned as "funds insufficient". Hence, a legal notice was sent on 22.12.2011 demanding the amount; but, the accused neither replied nor paid the cheque amounts. Hence, six complaints were filed as against the accused in respect of six cheques issued in favour of Adam Mohamed Sait (two cheques), his two sons, wife and daughter. Now, the present petitions have bee filed to quash the proceedings in the said complaints. 6. Main submission of the learned counsel for the petitioner/accused is that the learned Magistrate, while issuing summons to the petitioner, had not applied his mind and recorded his satisfaction for the issuance of summons. Under such circumstances, the complaints are liable to be quashed. Now, the present petitions have bee filed to quash the proceedings in the said complaints. 6. Main submission of the learned counsel for the petitioner/accused is that the learned Magistrate, while issuing summons to the petitioner, had not applied his mind and recorded his satisfaction for the issuance of summons. Under such circumstances, the complaints are liable to be quashed. Further, the learned Magistrate, without recording the satisfaction, but as a routine work, affixed a seal with the following contents: Complainant present Sworn statement recorded T.O.F.U/s.138 of N.I.Act..... Issue summons to accused on payment of process fees. Call on 15.06.12. In this regard, the learned counsel for the petitioner submitted that the complaints in C.C.Nos.1741 and 1742 of 2012 were filed by the said Adam Mohomed Sait himself and the other four complaints were filed by Adam Mohomed Sait as a power agent of his sons, wife and daughter But, in the sworn statement recorded in all the cases, the respondent Adam Mohomed Sait personally claimed that all the cheques have been issued to him, whereas the fact remains that only two cheques were issued in his favour and four cheques were issued in favour of his family members. When such being the position, without application of mind, based on the said sworn statement, the complaints were taken on file by the Court. 7. The learned counsel, by inviting the attention of this Court to the averments made in the complaints, submitted that in para 3 of the complaints filed in C.C.Nos.1741 and 1742 of 2012 and para 4 of the complaints filed in C.C.Nos.1743 to 1746 of 2012, the tailor-made statements were made as if the cheques were issued in favour of Adam Mohomed Sait, which would show that the learned Magistrate without application of mind, has issued the process of summons. The learned counsel, in support of his submissions, has relied upon the judgment reported in 1998 SCC (Cri) 1400in the case of Pepsi Foods Ltd., and another vs. Special Judicial Magistrate and others. 8. Per contra, the learned counsel for the respondents, by relying upon the judgment reported in (2012) 11 SCC 465 (Nupur Talwar vs. Central Bureau of Investigation and another)submitted that section 204 of Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons. 8. Per contra, the learned counsel for the respondents, by relying upon the judgment reported in (2012) 11 SCC 465 (Nupur Talwar vs. Central Bureau of Investigation and another)submitted that section 204 of Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons. Even if there is any irregularity in taking cognizance and issuing summons, such irregularity do not vitiate the proceedings. Hence, the present petitions are liable to be dismissed. 9. Keeping in mind the submissions made by the learned counsel for both sides, this Court has perused the materials available on record. It is the main contention of the petitioner that the learned Magistrate has mechanically issued summons by relying on the sworn statement of one complainant and he has not recorded the satisfaction for the issuance of the summons. Though two complaints were filed by one of the complainants (Adam Mohomed Sait) himself and other complaints were filed by the said complainant as the power agent of his sons, daughter and wife, in all the sworn statements, he has made a tailor-made statement as if the cheques were issued in his favour and without looking into this aspect, mechanically the Magistrate had issued summons. Therefore, it is apparent that the learned Magistrate, without application of mind, recorded the satisfaction and issued summons and as such, the proceedings are liable to be quashed. 10. The judgment relied on by the learned counsel for the respondent reported in (2012) 11 SCC 465 (supra) gives a fitting answer to the ground raised by the learned counsel for the petitioners in this petition and the relevant paragraphs in the said judgment are extracted hereunder: "13. Whether an order passed by a Magistrate issuing process required reasons to be recorded, came to be examined by this Court again, in Dy. Chief Controller of Imports and Exports vs. Roshanlal Agarwal &Ors., (2003) 4 SCC 139 , wherein this Court concluded as below:- “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. &Ors., (2000) 3 SCC 745 , and after noticing the law laid down in Kanti Bhadra Shah v. State of West Bengal, (2000) 1 SCC 722 , it was held as follows: The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.(emphasis supplied) 14. Recently, in Bhushan Kumar and another vs. State (NCT of Delhi) and another (Criminal Appeal no. 612 of 2012, decided on 4.4.2012) the issue in hand was again considered. The observations of this Court recorded therein, are being placed below:- “12. A 'summons' is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of Court. 13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. It is a ground for contempt of Court. 13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. 14. Time and again it has been stated by this Court that the summoning order Under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.”(emphasis supplied). 15. It is therefore apparent, that an order issuing process, cannot be vitiated merely because of absence of reasons". 11. The dictum laid down in the above judgment would reveal that section 204 of Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons. The purpose of recording the sworn statement is only to identify the offenders to issue summons calling upon them to appear before the Magistrate. When that being the legal position, I do not find any force in the submission made by the learned counsel for the petitioner that the learned Magistrate has mechanically issued summons by relying on the sworn statement. 12. Further, in my considered opinion, even assuming for a moment that if there is any irregularity in taking cognizance, such irregularity would not vitiate the proceedings. In this regard, it would be proper to extract section 460(e) Cr.P.C. hereunder: "460. Irregularities which do not vitiate proceedings: If any Magistrate not empowered by law to do any of the following things, namely:- (e) to take cognizance of an offence under clause (a) or clause (b) of subsection (1) of Section 190"; 13. In this regard, it would be proper to extract section 460(e) Cr.P.C. hereunder: "460. Irregularities which do not vitiate proceedings: If any Magistrate not empowered by law to do any of the following things, namely:- (e) to take cognizance of an offence under clause (a) or clause (b) of subsection (1) of Section 190"; 13. Hence, in my opinion, even assuming that if there is any irregularity in taking cognizance, the same would not vitiate the proceedings under section 460(e) of Cr.P.C. Therefore, I do not find any merit in the submission made by the learned counsel for the petitioner to quash the proceedings pending against him and, as such, the petitions are liable to be dismissed. Accordingly, all the Criminal Original Petitions are dismissed. Consequently, connected M.Ps. are closed.