JUDGMENT
J.G. Chitre, J.
1. Heard.
2. The petitioner hereby assails the correctness, propriety and legality of the judgment and order passed by the Additional Sessions Judge, Pune in Criminal Revision Application No. 372 of 2001 whereby he set aside the order passed by the JMFC, Bhor who issued the process against respondent No. 1 for offences punishable under Section 415, 418 and 420 of Indian Penal Code.
3. Shri Khandeparkar, counsel appearing for the petitioners, submitted that though there are clear allegations made in the complaint bringing in, the ingredients of offence defined by Section 415 of IPC made punishable by Section 418, 420 of IPC, the learned Sessions Judge set aside the order of the learned Magistrate who issued the process against respondent No. 1 for the offences punishable under the provisions of Section 415, 418 and 420 of IPC. He invited the attention of this Court to the allegations made in paragraph 16 B of the complaint whereby a specific allegation has been made that the intention of the respondent No. 1 was fraudulent and was of cheating the petitioner when the memorandum of understanding was prepared on 16.8.2000. Shri Khandeparkar further pointed out that in the said paragraph, the word “deceived” has been used which clearly makes out the allegation that the respondent No. 1 had fraudulently cheated the petitioner and thereby caused a wrongful loss to the petitioner and wrongful gain to himself. Shri Khandeparkar submitted that when this was the allegation in the complaint, it was necessary for the learned Additional Sessions Judge to read it as it is and it was necessary for him not to disturb the order by which the learned Magistrate issued the process against respondent No. 1.
4. Shri Khandeparkar further submitted that at the time of issuing the process the defence which can be raised by such an accused was not to be considered, but the learned Additional Sessions Judge has considered it and, therefore, has landed in error in passing the judgment and order which is being assailed in this petition. He submitted that an opportunity be given to the petitioner to adduce the evidence before charge and thereafter the Magistrate be appealed for the appropriate prayer by respondent No. 1. He submitted that the approach taken by the learned Additional Sessions Judge happens to be premature and, therefore, the said order needs to be set aside by allowing this petition.
5. Shri Jamdar, counsel appearing for respondent No. 1, firstly submitted that the learned Additional Sessions Judge was right in considering the probable defence of respondent No. 1 when he was hearing the revision petition. He submitted that the learned Additional Sessions Judge has considered the ratio of the judgments of the Supreme Court and has rightly concluded that no case was made out for spelling out offences punishable under Sections 415, 418 and 420 of Indian Penal Code.
6. Shri Jamdar submitted that the transaction is of civil nature. Ninety percent of the disputed claim has been paid by respondent No. 1 and that shows his intention of paying the amount. He submitted that by reading the clause in the notice to which Shri Jamdar referred to in his submissions, the transaction appears to be a civil transaction and, therefore, criminal court should not have taken the cognizance. He prayed for dismissal of the petition.
7. Shri Saste, Additional Public Prosecutor appearing for the State of Maharashtra submitted that just, proper and legal order be passed by this Court as this Court considers it proper.
8. The learned Additional Sessions Judge has quoted some observations of Supreme Court from its judgment in Alpic Finance Ltd. v. P. Sadasivan and Anr., reported in 1(2001) CCR 254 (SC). He quoted the observations of the Supreme Court:-
“It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception.”
9. The learned Additional Sessions Judge also quoted a paragraph from the judgment of the Supreme Court in the matter of Haridaya Ranjan P.D. Verma and Ors. v. State of Bihar and Anr., reported in II (2000) CCR 62 (SC) which reads as under:-
“In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent and dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. …………… To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning that is, when he made the promise cannot be presumed.”
10. By quoting these paragraphs, the learned Additional Sessions Judge concluded that in the present case no offence was spelt out from the allegations made in the complaint.
11. At the outset it needs to be mentioned that it is not a fair practice for a judicial proceeding to quote the paragraphs of the judgments in a disintegrated way. The judgment has to be read and understood and ratio has to be applied by reading the judgment entirely. It is also pertinent to note that the ratio of the judgment is to be applied to each and every case by understanding the facts and circumstances of each case. When it is a matter revolving around the order issuing the process, it has to be read in context with the allegations embodied in the complaint. When it is a matter wherein some evidence has been adduced in the nature of documents or by way of oral testimony, the ratio is to be understood and applied keeping in view the allegations made in the complaint as well as the evidence so adduced. The third criteria would be to apply the ratio of the judgment to cases where the litigants are approaching the courts after the order of conviction or acquittal has been recorded after completion of the trial. In that case, the ratio is to be applied in context with the entire evidence on record which includes the evidence adduced by the prosecution in support of the prosecution and the evidence adduced by the accused in his defence. Quoting piece meal paragraphs of the judgments and that too in a disintegrated way would be leading to miscarriage of justice because thereby the Judge is likely to jump to a conclusion which may not be consistent with the entire core which needed to be considered by him.
12. When the matter revolves around the order of issuing he process, it is the settled law that the allegations made in the complaint and as they are, are to be seen and they are to be read in proper perspective. The learned Magistrate is obliged to read those allegations in the complaint by applying his judicial mind and thereafter he has to come to a conclusion whether that case is fit one for the court to take the cognizance and to proceed further. For that, he has to see whether the complaint is making out the ingredients of the offence alleged in the said complaint.
13. In the present case in paragraph No. 16 (b) the allegations have been made by the complainant that the respondent No. 1 deceived the complainant and his criminal intention was indicated right from the moment when the said agreement of understanding was prepared. He has alleged that the respondent No. 1 by his conduct caused the complainant wrongful loss and caused himself the wrongful gain. The learned Magistrate is required to understand the impact created by the allegations in the complaint by reading the complaint as a whole.
14. The allegations made in the complaint does make out a prima facie case for the offence which has been defined by provisions of Section 415 and which has been made punishable by provisions of Section 420 of IPC. But there is no case made out at all for the offence which has been indicated by provisions of Section 418 of IPC.
15. Shri Khandeparkar urged that the Additional Sessions Judge did not have the jurisdiction and power to hear the submissions advanced by respondent No. 1’s advocate echoing the probable defence of respondent No. 1. Shri Jamdar justified the action taken by the Additional Sessions Judge. This Court heralds that at the time of hearing of a revision application the court hearing such application has the jurisdiction and power to hear the probable defence of such an accused for the purpose of understanding his case and for coming to a conclusion whether such an order which has been put to challenge needs to be set aside or whether such prosecution needs to be permitted to be continued.
16. In number of cases the allegations or averments made in the complaint themselves indicate the probable defence of such an accused. Normally it is the duty of every complainant to annex the supporting documents to complaint. If he fails to do so, the accused against whom such process has been issued has a legal right to bring it to the notice of the court the documents indicating his probable defence in the said prosecution for the purpose of making a prayer to the Court for recalling the order of issuing the process. It can be done in the revisional jurisdiction also by making a prayer to the revisional court to set aside the said order. There cannot be restriction to the revisional jurisdiction or such revisional court in permitting the aggrieved person to put up the argument. In fact such argument are necessary to be heard for the purpose of finding out the truth for administering the justice. Even suo motu the assistance can be sought from any lawyer by making him a request to make the submissions as amicus curie. The right of court to get the appropriate assistance cannot be fettered or restricted. Thus, submissions advanced by Shri Khandeparkar stands dismissed on this point.
17. The learned Additional Sessions Judge has not fully understood the ratio of the judgments of the Supreme Court mentioned in his judgment. In paragraph 15 of that judgment, the Supreme Court pointed out that when the complaint is making out the ingredients of intentional deception on the part of the accused right from the start of the negotiations and negotiations neither expressly stated nor indirectly suggested, in such cases the Court can take the cognizance of such complaint and continue the proceeding further against such accused. True, in that judgment the Supreme Court observed that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. The Supreme Court also observed in paragraphs 12, 13 and 14 that the intention is the gist of the offence. The learned Additional Sessions Judge has not quoted the other paragraphs of the said judgment and has not understood the ratio of the said judgment and, therefore, he failed to apply the ratio to the present case.
18. In the same way, the learned Additional Sessions Judge quoted the paragraph of the judgment of the Supreme Court in Alpic Finance Ltd.’s case (supra). It has been pointed out in the same judgment that in the said complaint no allegation was made that there was fraudulent or dishonest inducement on the part of the respondents and that they parted with property. In the said judgment it has been pointed out that there was no element of deception in the whole transaction. It was also pointed out that in that case the appellant had an oblique motive of causing harassment to the complainant by seizing entire articles through Magisterial proceedings. The observations which the Additional Sessions Judge has quoted have to be understood with those surrounding circumstances which were in existence in those cases.
19. The ratio of the judgment cannot be applied to all cases in an uniform way. They are to be applied by understanding the allegations made in each case and the case revealed by the allegations or averments made in the complaint by reading the complaint as a whole. In some complaints the complainant may not be so eloquent in quoting the exact words of the section because generally such complaints are drafted by their lawyers. The experience of the lawyer drafting the complaint, his way of thinking and drafting the complaint and the way of presentation may differ. Only the defects in the presentation of the complaint in proper words should not create a prejudice to the real cause of the complainant who generally never drafts the complaint as the experience tells. If the complaint is making out a case of the offence alleged if read as a whole, justice has to be done to him though the person drafting the complaint may not be so apt in choosing the exact words and bringing the ingredients of the section in the complaint as a methodic person may require. Moffussil drafting has to be given its appropriate valuation, accommodation and understanding. Sophistication of the words chosen should not be the advantage of a class who dwells in cities. What is to be seen is the intention behind the expression of the grievance and cause which makes the complainant to approach the court for the purpose of a prosecution against the accused mentioned in it.
20. In the present complaint, if read as a whole, the ingredients of Section 415 has been brought tin in a general way by using the word “deceived”. What “deceived” means is indicating a deception. Deception is always followed by some promises made which are lucrative, luring, attractive and making a person to fall a prey in the trap. “Fraudulent” brings in the dishonesty. The words “wrongful loss”, “wrongful gain” are also defined in Indian Penal Code which revolve around the word “dishonestly”, “fraudulently”. Therefore, the impact created by the use of these words in the complaint in the present case has to be understood in proper perspective and that leads to make out a prima facie case for an offence punishable under Section 420 of IPC.
21. The learned Additional Sessions Judge has lost sight of these important aspects of the case and has landed in error in throwing out the case of the complainant from the Court right at the initial stage. The approach adopted by the learned Additional Sessions Judge in dealing with the complaint at the initial stage happens to be incorrect, improper and, therefore, illegal.
22. The respondent No. 1 has a right to put up his case before the trial Court for praying for recalling the said order or exonerating him at the initial stage also and thereafter at the time of framing of the charge. Doors cannot be shut to respondent No. 1 by keeping in view the averments in the reply to the notice which has been referred to by Shri Jamdar, counsel appearing for respondent No. 1.
23. Thus, this petition stands allowed. The order passed by the Additional Sessions Judge, Pune stands set aside. The order of issuing the process passed by the learned JMFC, Pune, stands restored. The respondent No. 1 should appear before that Court on 16.9.2003 during working hours and should furnish the bond as found proper by that Court for ensuring his presence before that Court. The respondent No. 1 is at liberty to move for recalling that order by producing the documents which he finds it proper to produce before that Court for justifying his submissions if he wants to make it so.
24. The learned JMFC should conduct the trial only for the offence punishable under Section 420 of IPC. The process issued against the respondent No. 1 for offence under Section 418 of IPC stands quashed. The order passed by the Magistrate stands amended because he has quoted Section 418 which defines the offence of cheating.
25. Parties to act on ordinary copy of the order duly authenticated by the Private Secretary of this Court.