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2016 DIGILAW 1024 (ALL)

Yogesh Mathur v. State of U. P.

2016-03-18

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. The present application u/s 482 CrPC has been filed by the applicants with the prayer to quash the entire criminal proceedings of the complaint case no. 3721 of 2014 under Sections 468, 471, 120-B IPC, P.S. Vijay Nagar, District - Ghaziabad and the impugned order dated 1.10.2014 passed by the Additional Chief Judicial Magistrate 2nd, Ghaziabad as also the order dated 30.1.2016 passed by the Additional District & Sessions Judge, Court No.2, Ghaziabad in criminal revision no. 41 of 2015. Further prayer has been made to stay the further proceedings of the aforesaid case. 2. It appears that the applicants are partners of M/s Siddhant Enterprises, which is a partnership firm having its registered office at Delhi. It further appears that the opposite party no.2 filed a complaint against the applicants with the allegation that the applicants with a deceitful intention planned a scheme to cheat the complainant with a forged business proposal with the company, namely, 'Donod' having its base at China & Hong-kong but as per the business proposal a sum of Rs. 5.3 lakh cash was to be paid. The complainant under the influence and trust paid the amount of Rs. 5.30 lakhs and handed over the signed cheques without name and date. The applicants handed over a forged receipt of the cash and the cheques to the complainant. When the consignment did not arrive within the stipulated period, the complainant on enquiry found all the documents forged and fake. Statements under Section 200 and 202 CrPC were recorded and the Magistrate concerned being satisfied with the contents of the complaint and the evidence, summoned the applicants to face the trial under Sections 420, 467, 468, 471 and 120-B IPC. The applicants filed discharge application under Section 245(2) CrPC, which was rejected by the concerned Magistrate by the order dated 2.2.2015. Against the said order, the applicants filed criminal revision No. 41 of 2015, which was also dismissed by the Additional Sessions Judge, Court No. 2, Ghaziabad affirming the order passed by the concerned Magistrate, hence, the present application. 3. Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Shri Swetashwa Agarwal, learned counsel for the applicants, S/Shri Harish Chandra and Rajiv Gupta, learned counsel for the opposite party no.2 and the learned AGA appearing for the State and perused the record. 4. 3. Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Shri Swetashwa Agarwal, learned counsel for the applicants, S/Shri Harish Chandra and Rajiv Gupta, learned counsel for the opposite party no.2 and the learned AGA appearing for the State and perused the record. 4. It was submitted by the learned counsel for the applicants that offences levelled against the applicants are not attracted in the present matter. Articles / goods were supplied to the opposite party no.2 and invoices were issued for payment. Cheques issued by the opposite party no.2/ complainant were not cleared by the Bank, hence the proceeding under Section 138 Negotiable Instrument Act was started. The opposite party no.2 has been summoned to face the trial and bailable warrant has been issued by the court situated at Delhi. It was further submitted that no prima-facie case is made out against the applicants. Application under Section 245(2) CrPC was moved, which was illegally rejected by the concerned Magistrate. The revisional court also did not consider the true aspect of the matter and dismissed the criminal revision affirming the order passed by the Magistrate concerned. It was further submitted that the present complaint cannot go-on against the applicants. Discharge Application could be moved by the accused at any stage of the trial, hence the finding recorded by the concerned Magistrate on the application under Section 245(2) CrPC is illegal and perverse. It was next contended that the mandatory provisions provided under Section 202 CrPC were not followed by the concerned Magistrate before passing the summoning order as the applicants are residing beyond the territorial jurisdiction of the court concerned. Referring to Act No. 25 of 2005, it was submitted that amendments made in Section 202 CrPC are applicable with effect from 23.6.2006, therefore, the court below ought to have proceeded to enquire the matter. In support of his aforesaid submissions, learned counsel for the applicants placed reliance on the following decisions of the Supreme Court: 1. National Bank of Oman vs. Barakara Abdul Aziz and another, 2013 (2) ACR 1643 (SC). 2. Udai Shanker Awasthi vs. State of U.P. And another, 2013 (1) ACR 689 (SC). 5. In support of his aforesaid submissions, learned counsel for the applicants placed reliance on the following decisions of the Supreme Court: 1. National Bank of Oman vs. Barakara Abdul Aziz and another, 2013 (2) ACR 1643 (SC). 2. Udai Shanker Awasthi vs. State of U.P. And another, 2013 (1) ACR 689 (SC). 5. On the other hand, learned counsel for the opposite party no.2 and the learned AGA appearing for the State submitted that since the Magistrate concerned while passing the summoning order has made proper enquiry, the summoning order passed in the matter cannot be said to be illegal. It was further submitted that the present matter is based on documentary evidence, hence, enquiry made by the concerned Magistrate fulfilled the requirement of Section 202 CrPC. It was next contended that the concerned Magistrate while passing the order on discharge application has discussed the entire facts and evidence in detail, therefore, the order passed on the discharge application can also not be said to be illegal. Merely on the basis that a criminal proceeding under Section 138 Negotiable Instrument Act regarding dishonour of cheques has been initiated by the applicants against the opposite party no.2, the allegations levelled in the present complaint cannot be disbelieved. The revisional court has also rightly dismissed the criminal revision affirming the order passed on discharge application. It was further submitted that from the material available on record, a prima-facie case is made out against the applicants. Hence, there is no infirmity or illegality in the impugned orders warranting interference by this Court. 6. I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record including the case laws cited by the learned counsel for the applicants. 7. The Apex Court in the case of National Bank of Oman (supra) held as follows (paragraphs 6, 7 and 8 of the said ACR): "6. The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint - (I) on the materials placed by the complainant before the Court (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made our; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. 7. Section 202 of the Cr.P.C. was amended by the Cr.P.C. (Amendment Act 2005) and the following words were inserted: "and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction" The notes on clauses for the above-mentioned amendment read as follow: "False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend subsection (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused." The amendment has come into force w.e.f. 23.6.2006 vide notification No.S.O.923(E) dt. 21.6.2006. 8. We are of the view that the High Court has correctly held that the above -mentioned amendment was not noticed by the C.J.M. Ahmednagar. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 of the Cr.P.C. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 of the I.P.C. The C.J.M. will pass fresh orders after complying with the procedure laid down in Section 202 Cr.P.C., within two months from the date of receipt of this order." 7. In the instant case at this juncture the Court does not find it appropriate to discuss the maintainability of the application under Section 245(2) CrPC and proceeds to deal with the submissions made by the learned counsel for the parties. 8. It is evident from the record that two cheques were issued by the opposite party no.2, which were dishonoured on presentation before the Bank and a criminal proceeding under Section 138 Negotiable Instrument Act was initiated which is going-on. Submission of the learned counsel for the applicants is that goods/ articles were supplied by the applicants to the opposite party no.2 in terms of the agreement and invoices were issued, therefore, the cheques were issued by the applicants which were not cleared by the Bank. It is pertinent to mention here that both the parties have admitted that a business agreement was entered into between the parties. As per the complainant / opposite party no.2, applicants had to supply the goods but the goods were not supplied. On enquiry by the opposite party no.2, everything was found forged and false. The allegations levelled against the applicants, in the facts and circumstances of the case, cannot be thrown out out-rightly only on the basis of pendency of proceeding under Section 138 of the aforesaid Act. Essential ingredients to constitute the offences levelled against the applicants are available in the matter. 9. The allegations levelled against the applicants, in the facts and circumstances of the case, cannot be thrown out out-rightly only on the basis of pendency of proceeding under Section 138 of the aforesaid Act. Essential ingredients to constitute the offences levelled against the applicants are available in the matter. 9. A perusal of the impugned order passed on the discharge application clearly shows that the submissions made by the learned counsel for the applicants have been discussed in detail by the concerned Magistrate. Certainly, the pleas raised by the learned counsel for the applicants would require leading of evidence, which can appropriately be done before the court below at appropriate stage. Thus, the findings recorded by the concerned Magistrate are in accordance with law and there is no infirmity or illegality in the said findings. 10. So far as the compliance of the provisions of Section 202 CrPC is concerned, in the present matter, the summoning order has been passed on the basis of oral as well as documentary evidence. Though the applicants are resident of Delhi and Section 202 CrPC specifically provides that if the accused person is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, an enquiry, as provided vide Act No. 25 of 2005 must be made. Three options have been given by the legislature to the concerned Magistrate enquiring the matter, i.e. (i) to enquire himself, or (ii) to direct for investigation to be made by a police officer, or (iii) to depute / authorise any other person to enquire the matter. In the present matter, enquiry under Section 202 CrPC has been made by the concerned Magistrate. Documentary evidence has also been received. Offences levelled against the applicants occurred within the territorial jurisdiction of District Court Ghaziabad, which is adjacent to the Delhi. Hence, in the opinion of the court, mandatory requirement as provided under Section 202 CrPC has been followed by the concerned Magistrate. 11. As far as the submission about a prima-facie case against the applicants is concerned, it is settled legal position that at the stage of taking cognizance and summoning the accused, the Magistrate/ Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused person. The Court dealing with the matter is not required to analyze the material at this stage to find-out as to whether the matter will lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. It is also settled that even when there are materials raising strong suspicion against the accused, the Court will be justified in taking cognizance and summoning the accused. The Court / Magistrate is not required to analyze the evidence as is done after recording the evidence in trial. From the facts and evidence available on record, at this stage, it cannot be said that no prima-facie case is made out against the applicants to proceed with the trial. So far as the other submissions made by the learned counsel for the applicants are concerned, to decide / adjudicate the same, leading of evidence would be required which can appropriately be done before the court concerned at appropriate stage. 12. In view of the aforesaid discussions, I am of the opinion that there is no infirmity or illegality in the impugned orders warranting interference by this Court. The application being devoid of merits is liable to be dismissed and the same is accordingly dismissed.