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2013 DIGILAW 73 (JK)

Khevna Plastics (M/s) & Ors. v. Nilkamal Ltd. (M/s) & Anr.

2013-02-04

J.P.SINGH

body2013
1. M/s Khevna Plastics-petitioner No. 1, dealing in various plastic products would purchase Roto Moulded Crates, 'RMCT Crates', for short, of different capacities from M/S Nilkamal Limited, a Company with its administrative office at MIDC Andheri (East), Mumbai-93 and a manufacturing Unit at Jammu in the State of Jammu and Kashmir. 2. Accusing, the petitioners and respondent No.2, an employee Incharge of respondent No.1-M/s Nilkamal Limited, of having conspired to divert the delivery of RMCT Crates, sent by respondent No.1 from its manufacturing Units at Jammu and Khardpada for storage at Surat, to the petitioners, Respondent No.1 filed a Complaint against the petitioners and respondent No.2 in the Court of Judicial Magistrate 1st Class (Munsiff), Samba seeking initiation of criminal proceedings against them under Sections 406, 418, 424, 420, 441 r/w Section 34 & 120-B RFC besides orders for recovery of Rs.7,27,215/-. The criminal conspiracy alleged to have been hatched by the petitioners with respondent No.2 is stated to have resulted in loss of money to respondent No.1, in that, the goods sent by it for storage at Sural, were skipped entry by respondent No.2 in the records of the Company and instead delivered to the petitioners. An affidavit sworn by respondent No.2 admitting, his liability to pay Rs.3.00 lac to respondent No.1, which he had received from the petitioners, and of having conspired with the petitioners in delivering them RMCT Crates, also accompanied the Complaint. The acts of omission and commission attributed to the petitioners resulting in alleged loss to respondent No.1, are stated to have taken place on 8th October, 2009 at Surat-Gujrat. 3. Taking cognizance of the Complaint, the learned Magistrate issued process for petitioners' and respondent No.2's appearance before it. 4. Aggrieved by the process issued against them, the petitioners have approached this Court seeking quashing of learned Magistrate's order dated August 30,2012. 5. Terming the respondent's Complaint as false and frivolous, the petitioners say that the offences alleged to have been committed by them, having taken place outside the territorial limits of the Jammu and Kashmir State, the learned Magistrate had no jurisdiction to summon them. It is additionally urged that the Complaint filed by respondent No.1 for putting the Criminal Law into Motion to recover the money allegedly payable by the petitioners to respondent No.1, is an abuse of the process of Court. 6. It is additionally urged that the Complaint filed by respondent No.1 for putting the Criminal Law into Motion to recover the money allegedly payable by the petitioners to respondent No.1, is an abuse of the process of Court. 6. Heard learned counsel for the parties, considered their submissions and perused the records of the learned Judicial Magistrate. 7. To consider the submissions advanced at the Bar, regard needs to be had to the provisions of Section 204 of the Code of Criminal Procedure Svt. 1989, which govern issuance of process on Complaints. It reads thus:- "204. Issue of process (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (1-a) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (1-b) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (2) Nothing in this section shall be deemed to affect the provisions of section 90. (3) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued Until the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint." 8. In terms of the provisions referred to herein above, a Magistrate may issue process on a Complaint only against those found prima facie liable for trial, and that too, if there was sufficient ground for proceeding with the Complaint, for their appearance, either before it or before any other Magistrate having jurisdiction to try the offence(s), in case the Magistrate would not possess jurisdiction so to do. 9. 9. The provisions of Section 204 of the Code of Criminal Procedure demonstrate, inter alia, clear distinction between taking of cognizance and issuance of process, in that, requisite satisfaction, needed to be recorded before issuance of process, may not be necessary in taking cognizance of the Complaint, for, taking of cognizance Joes not automatically result in issuance of process, unless the Magistrate finds sufficient ground(s) for proceeding on the Complaint. After taking cognizance, a Magistrate may dismiss the Complaint if sufficient ground for proceeding therewith were not found. Another thing that comes out from the perusal of the Section is that before issuance of process, the Magistrate needs to be cautious as to whether the offence complained of was to be tried by it or by some other Magistrate competent so to do, in that, before issuing process, he has to indicate as to whether the appearance of the accused had to be before it or before any other Magistrate, who, according to him, was competent to try the offence(s). 10. This apart, offence(s) punishable under laws in force in the State may alone be investigated, inquired into, tried or otherwise dealt with by the Criminal Courts in the State and it is needless to mention that of fence(s) committed without the State of Jammu and Kashmir may not be inquired into or tried by Criminal Courts in the State unless specifically provided therefor by the Code of Criminal Procedure. 11. Therefore, Magistrates are required to be additionally aware that the act(s) of omission or commission constituting offence, or any transaction leading to the completion of the offence, was committed within the State of Jammu and Kashmir, before they contemplate process on Complaint under Section 204 of the Code of Criminal Procedure. 12. Seen in the background of the above view on the provisions of Sections 5 and 204 of the Code of Criminal Procedure, order dated 30.08.2012 of the learned Magistrate is found to have been issued without recording requisite satisfaction in terms of Section 204 of the Code as to whether or not there were sufficient grounds for proceeding with the Complaint Rather than recording requisite satisfaction needed before issuance of process, learned Magistrate has hastened to summon the petitioners only after forming opinion that there was sufficient ground for taking cognizance under Sections 406, 418, 424, 420, 441 RFC. 13. 13. Taking of cognizance and issuing of process being two different situations, as indicated above, the satisfaction recorded by the .learned Magistrate for taking cognizance does not justify issuance of process against the petitioners in the absence of requisite satisfaction of there being sufficient ground(s) for proceeding with the Complaint. 14. Perusal of respondent No.1's Complaint and the statements of its witnesses reveals that the acts of omission and commission attributed by respondent No.1 to the petitioners had taken place at Surat in the State of Gujrat, a place beyond the territorial limits of the State of Jammu and Kashmir. 15. In these circumstances, when the acts of omission and commission had taken place in the State of Gujrat, learned Magistrate was required to keep in view the provisions of Chapter XV of the Code of Criminal Procedure to find as to whether it had jurisdiction to issue process and if so whether sufficient ground(s) were there for proceeding with the Complaint, before issuing process thereon. 16. This, however, does not appear to have been done because the order passed for summoning the petitioners does not reflect requisite satisfaction contemplated by the provisions of Section 204 of the Code of Criminal Procedure. 17. It has time and again been observed by this Court that issuance of process deprives the person(s) proceeded against of his/her right to Personal Liberty and the Magistrates are required to ensure that process of criminal Court was not misused and liberty of persons unnecessarily curtailed. The caution sounded does not appear to have been taken note of by the learned Magistrate. The proceedings initiated against the petitioners on the basis of order dated 30.08.2012 cannot, therefore, be permitted to proceed unless the Magistrate examines the matter afresh in the light of the observations made above. 18. For all what has been said above, the order passed by the learned Magistrate, therefore, needs to be set aside. 19. This Petition, accordingly, succeeds and is, therefore, allowed setting aside Judicial Magistrate 1st Class, Samba's order dated 30.08.2012. Respondent No.1's Complaint is sent back for its re -examination by the learned Magistrate for appropriate orders thereon, in accordance with law.