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2023 DIGILAW 1925 (PNJ)

Ashraf Khan v. Mohan Kumar Goyal

2023-05-31

VIKRAM AGGARWAL

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JUDGMENT Mr. Vikram Aggarwal, J. By way of the present revision petition, the petitioner assails the judgement dated 21.03.2016 passed by the Judicial Magistrate 1st Class, Ferozepur Jhirka (District Mewat) vide which the complaint filed by the petitioner under Sections 228, 323, 342, 352, 500, 506, 120-B IPC read with Section 345 Cr.P.C. was dismissed. 2. The facts, briefly put, are that the present petitioner was an accused in a complaint filed by one Kirpal Singh under section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act'). The said complaint was fixed for defence evidence and on 04.12.2014, one witness namely Abdul Salam was present. He tendered his affidavit in his examination in chief. However, as per the petitioner, the counsel for the complainant namely Mohan Kumar Goyal, Advocate (respondent No.l) intentionally did not appear to cross examine the witness on the pretext that he was ill. When the witness Abdul Salam came outside the Court premises after the case had been adjourned to 17.12.2014, respondent No.l called the said witness and threatened him asking him not to depose in favour of the present petitioner. Under the circumstances, Abdul Salam did not appear before the Court on 17.12.2014. The case was adjourned to 15.01.2015 but the witness again refused to accompany the petitioner. He even swore an affidavit dated 14.01.2015 stating that he was unable to accompany the petitioner because of the threats having been extended by respondent No.1. On 15.01.2015, when the affidavit was presented before the Court, the brother of respondent No.l Manoj Kumar Goyal, Advocate (respondent No.2) snatched the affidavit from the petitioner and tore it. The matter was noticed by the Presiding Officer in his order also. The petitioner had to be escorted out of the Court Complex by the gunman of the Presiding Officer. Under the circumstances, a complaint was filed by the petitioner under Sections 228, 323, 342, 352, 500, 506, 120-B IPC read with Section 345 Cr.P.C. with the aforementioned facts/allegations. 3. The trial Court did not forward the complaint for registration of FIR as per the provisions of Section 156(3) Cr.P.C. and declined the said prayer vide order dated 07.08.2015. Accordingly, three witnesses were examined by the complainant in his preliminary evidence. These witnesses were Abdul Salam (the witness who had to appear in the complaint under section 138 of the NI Act), the petitioner himself and one Asgar. Accordingly, three witnesses were examined by the complainant in his preliminary evidence. These witnesses were Abdul Salam (the witness who had to appear in the complaint under section 138 of the NI Act), the petitioner himself and one Asgar. Certain documents were also marked as Mark-A to Mark-F. After considering the preliminary evidence, the complaint was dismissed by the trial Court leading to the filing of the present revision petition. 4. I have heard learned counsel for the petitioner and have also perused the paper book. 5. Learned counsel for the petitioner has submitted that the trial Court erred in dismissing the complaint filed by the petitioner despite cogent evidence having been led by the petitioner in support of his allegations. Learned counsel has submitted that at the stage of summoning, only a prima facie case was to be made out and the Court was not required to delve deep into the merits of the controversy. Learned counsel has referred to the orders passed by the trial Court Annexure P-l and P-3, the affidavit dated 14.01.2015 (Annexure P-2), the representation moved to the High Court (Annexure P-4), the order passed by the High Court on the same (Annexure P-5) and statement of Abdul Salam (Annexure P-7). Learned counsel has contended that this evidence led on the record of the case by the petitioner was sufficient to make out a prima facie case against the respondents. 6. I have considered the submissions made by learned counsel for the petitioner. 7. Before adverting to the merits of the case, it would be essential to examine as to what principles are to be followed by the Courts at the time of summoning of accused. Summoning is a serious issue. In the case of M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997(4) RCR (Criminal) 761, wherein it was held by the Hon'ble Supreme Court of India that summoning of an accused in a criminal case is a serious matter. It was held that criminal law cannot set into motion as a matter of course. It was further held that in a complaint case, the order of the magistrate summoning th accused should reflect application of his mind. It was held that the mere examination of witnesses by the complainant was not sufficient. It was held that criminal law cannot set into motion as a matter of course. It was further held that in a complaint case, the order of the magistrate summoning th accused should reflect application of his mind. It was held that the mere examination of witnesses by the complainant was not sufficient. It was laid down that the magistrate has to carefully scrutinise the evidence and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of allegations or otherwise and then examine if any offence was prima facie committed by the accused. The relevant findings of the Hon'ble Supreme Court of India are reproduced here-in-below:- "26. 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 that would 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. Magistrate has to carefully scrutinise the evidence brought on 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. " 7.1 This judgement was followed by this Court in the case of Prabhdeep Singh v. Sukhwinder Kaur, 2003(1) RCR (Criminal) 92 and in many other cases. 7.2 Still further, in the case of Sunil Bharti Mittal v. Central Bureau of Investigation, 2015(1) Recent Apex Judgements (R.A.J.) 473 (S.C.), a three Judges Bench of the Hon'ble Supreme Court of India laid down that the expression "taking cognisance" was not defined in the Code of Criminal Procedure. 7.2 Still further, in the case of Sunil Bharti Mittal v. Central Bureau of Investigation, 2015(1) Recent Apex Judgements (R.A.J.) 473 (S.C.), a three Judges Bench of the Hon'ble Supreme Court of India laid down that the expression "taking cognisance" was not defined in the Code of Criminal Procedure. It was held that when the magistrate applies his mind for proceeding under Sections 200-203 of the Code, he is said to have taken cognisance of an offence. It was held that it is imperative that on a complaint or on a police report, the magistrate is bound to consider the question as to whether the same discloses the commission of an offence and was required to form such an opinion in this respect. It was held that when a magistrate does so and decides to issue process, he shall be said to have taken cognisance. 7.3 More so, at the stage of summoning, no doubt the trial Magistrate should apply his mind to the facts of the case and should not pass a summoning order in a casual manner but at the same time, the question of sufficiency of evidence for conviction is not to be gone into. The Court is only required to see whether a prima facie case is made out so as to put the accused to regular trial. Evidence is not required to be gone into meticulously at this stage. Reliance in this regard can be made to Mohinder Singh v. Gulwant Singh and others, 1992 (2) Recent Criminal Reports 134 (S.C.) and-Parkash Kaur and others v. Smt.Hardeep Kaur, 1993 (1) Recent Criminal Reports 380 (P&H). 8. Reverting to the facts of the present case, the respondents are practising Advocates. The allegations levelled against them essentially pertain to proceedings in the Court. The orders dated 17.12.2014 (Annexure P-l) and 15.01.2015 (Annexure P-3) do not show any kind of misconduct on the part of the respondents. On the contrary, the order dated 15.01.2015 (Annexure P-3) does speak about the conduct of the present petitioner as it clearly mentions that on each and every date, he committed some act or omission and always created trouble before the Court. The orders dated 17.12.2014 and 15.01.2015 are reproduced herein below:- "Today case was fixed for cross-examination of DW-2 Abdul Salam and remaining Dws. No DW is present. The orders dated 17.12.2014 and 15.01.2015 are reproduced herein below:- "Today case was fixed for cross-examination of DW-2 Abdul Salam and remaining Dws. No DW is present. Fresh power of attorney on behalf of accused Asraf Khan has been filed by Sh. Arshad Khan, Advocate. Accused Asraf Khan stated on oath that on last date of hearing, his witness Abdul Salam was present in Court and was examined in chief as DW-2. His cross-examination was deferred on the request of counsel for complainant. He further alleged that today his witness Abdul Salam has not appeared before the Court as he has been threatened by Sh. Mohan Kumar Goyal, counsel for the complainant. He further sought an opportunity for producing Abdul Salam for his cross-examination on next date of hearing. His statement recorded to this effect separately. The allegations of accused Asraf has been strongly refuted and controverted by counsel for the complainant. Learned counsel for the complainant also sought adjournment for following up the allegations levelled by accused. On the request of both counsel, case is adjourned to 15.01.2015 for cross-examination of DW-2 and remaining Dws at own responsibility, being last opportunity. Keeping in view the seriousness of the allegations levelled by accused against the counsel for complainant, Sh. Mohan Kumar Goyal, necessary intimation in this regard be sent to the learned District & Sessions Judge, Mewat for information and further guidance. sd/- Judicial Magistrate 1st Class Ferozepur Jhirka/17.12.2014 " "Today case was fixed for cross-examination of DW-2 Abdul Salam and remaining DWs at own responsibility and further guidance from the office of learned District & Sessions Judge, Mewat and Hon'ble High Court. No DW is present. Again adjournment was requested for leading defence evidence. At this stage, learned counsel for the accused stated that still bail of the accused is not confirmed by the Hon'ble High Court. Accused Ashraf Khan put out a document from his pocket stating that kindly placed his affidavit on record. Learned defence counsel taken said document and started reading. He stated that accused did not disclose about tendering of this document on file to him. Sh. Manoj Kumar, Advocate is also present just next to the defence counsel. After reading of aforesaid documents, learned defence counsel smiled and handed over said document to Sh. Manoj Kumar. Learned defence counsel taken said document and started reading. He stated that accused did not disclose about tendering of this document on file to him. Sh. Manoj Kumar, Advocate is also present just next to the defence counsel. After reading of aforesaid documents, learned defence counsel smiled and handed over said document to Sh. Manoj Kumar. May be some unpleasant words or allegations were levelled upon counsel for the complainant; due to which some hot arguments started between them. As there was chances of altercation; therefore, as a precautionary measure this Court intervened and directed to the counsel of the complainant as well as defence counsel and accused to left the court premises with strict directions not to violate the Court decorum. Parties left the court room in a very rush and anger; therefore, to avoid any kind of altercation between the parties in Court premises, Naib Court of this Court is directed to safely taken the accused to out side of the Court building. No DW is present today and perusal of the case file shows that on 15.05.2014 evidence was closed by the complainant and statement under section 313 Cr.P.C of accused was recorded on 13.08.2014. Since then defence availed effective 7 opportunities i.e 30.08.2014, 16.09.2014, 30.09.2014, 21.10.2014, 13.11.2014, 04.12.2014 and 17.12.2014, but defence still examined only one witness. On each and every date, accused committed some act or omission, and always created trouble before the Court. Although it may be a delay tactics, but this case has to be decided on or before 31.03.2014 as same pertains to the Samadhan List, 2014-15. Now, case is adjourned to 21.01.2015 for DWs at own responsibility being last opportunity. It shall be clarified that no further opportunity shall be granted for leading evidence and same deem to be closed on next date of hearing. sdJ- Judicial Magistrate 1st Class Ferozepur Jhirka/15.01.2015" 9. In so far as the allegations of threats having been extended by respondent No.l to the petitioner are concerned, except for the bald statement of the petitioner and his witness, there is no other material on record to suggest that the petitioner had actually been threatened. No doubt, a complaint was moved by the petitioner before the High Court which is on record as Annexure P-4 but the same was withdrawn with liberty to avail legal remedies. No doubt, a complaint was moved by the petitioner before the High Court which is on record as Annexure P-4 but the same was withdrawn with liberty to avail legal remedies. No such complaint was moved to the police authorities which could have led to an investigation or at least an enquiry. What prevented the petitioner from moving any such complaint to the police authorities or even to the Bar Council has not been explained by the petitioner. The petitioner was the dominus litus of his case and it was upon him to make out a prima facie case in his favour and against the respondents-accused. The trial Court did not find the preliminary evidence to be convincing enough to summon the respondents. This Court finds no error in the said view of the trial Court warranting interference in re-visional jurisdiction. Even if the law on the subject is applied to the facts of the present case, no case of summoning is made out. If summoning was to be resorted to in this fashion, no Advocate would be able to pursue the case of his client. In such cases, the level of satisfaction for summoning the accused is higher than in normal cases. If the facts of the present case are seen, even if the respondents were not Advocates, the petitioner would have had to produce some better evidence to make out a case against the respondents-accused. In view of the aforementioned facts and circumstances, I do not find any merit in the present revision petition and the same is accordingly dismissed.