Case :- U/S 482/378/407 No. - 639 of 2009 Petitioner :- Somnath Dubey Respondent :- State Of U.P. Petitioner Counsel :- Amarjeet Singh Rakhra Respondent Counsel :- Govt. Advocate Hon'ble Ashok Srivastava,J.
The petitioner, as a complainant filed a complaint against the opposite party
no.2 R. P. Singh before the Special C.J.M.(Customs), Lucknow which was
under sections 406/323/504/506/420 IPC. The learned Magistrate examined
the petitioner-complainant under section 200 Cr.P.C. He also examined a
witness under section 202 Cr.P.C. and after hearing the complainant and
examining the oral as well as the documentary evidence filed by the
complainant before him, the learned Magistrate vide his order dated 19.8.2008
dismissed the complaint under section 203 Cr.P.C. Feeling aggrieved by the
dismissal and discharge order the petitioner preferred a Criminal Revision no.
354 of 2008. The revision was heard by the Court of learned Additional
Sessions Judge, Court No.8, Lucknow and was dismissed. Feeling aggrieved
by both the orders the present petition under section 482 Cr.P.C. has been
filed.
This matter pertains to an incident that took place in the year 2007. Opposite
party no.2 is a property dealer. The petitioner approached him to purchase
plot no.536 having its area as 1 Bigha, 18 Biswas & 3 Biswanis . The property
belonged to one Rama Nand Tripathi. An agreement was arrived into between
the parties and it was agreed that the said plot would be sold to the petitioner
for a sum of Rs.8.00 lacs. The petitioner drew an account payee cheque for a
sum of Rs.8.00 lac and offered it to opposite party no.2 who declined to
accept the cheque and asked the petitioner for a bearer cheque for a sum of
Rs.2.00 lac only. Therefore the petitioner drew a bearer cheque for Rs.2.00 lac
and handed it over to the opposite party no.2 who got it cashed. Thereafter the
petitioner met opposite party no.2 a number of times and requested him for
the execution of sale deed. Opposite party no.2 kept on lingering the
execution on one pretext or the other and ultimately, on one day, he flatly
refused to get the sale deed executed in petitioner’s favour. He also refused to
return the money which he had accepted from the petitioner through the
bearer cheque. When the petitioner insisted for return of money in presence of
the witness, opposite party no. 2 assaulted the petitioner, abused him and
threatened him to kill. The petitioner approached the police but in vain.
Thereafter he filed a complaint before the learned Magistrate. The fate of the
complaint and a consequent revision has already been mentioned above.
This case was listed on 18.1.2010 for hearing. On that date none was present
for opposite party no.2 even after the list was revised. Opposite party no.2 has
been served personally with the notice sent by this Court. Therefore, on that
date learned counsel for the petitioner and the learned AGA were heard on
merits.
It has been submitted from the side of the petitioner that the petitioner had led
sufficient oral as well as documentary evidence before the learned Magistrate
and the learned Magistrate on the basis of the same ,should have issued
summons to opposite party no.2 as a clear cut case under sections 420,406
IPC and also under sections 323, 504, 506 IPC was made out against him. By
not doing so the learned Magistrate has committed illegality. It has further
been submitted that the learned Magistrate has erred while holding the view
that the papers filed by the petitioner in support of his complaint should have
been proved in accordance with the norms, prescribed under the Evidence
Act. It has also been submitted that the learned Magistrate has adopted a
perverse view while dismissing the complaint.
Assailing the judgment and order passed by the learned Sessions Judge in the
above mentioned criminal revision it has been submitted from the side of the
petitioner that the same is bad in the eyes of law as the learned Sessions Judge
has failed to appreciate the underlying principles of law relating to such
matter. It has also been submitted that the learned revisional court while
exercising powers under section 397 Cr.P.C. has committed a lot of
illegalities and he has failed to exercise his powers in a just, proper and
logical manner.
The learned AGA has opposed this revision by saying that both the orders are
flawless and that the revision should be dismissed.
From the perusal of the record it is evident that the petitioner had examined
himself under section 200 Cr.P.C. and produced one witness under the
provisions of section 202 Cr.P.C. he had filed two papers before the learned
Magistrate during the course of enquiry which are (i) receipt issued by
opposite party no.2 and (ii) a certificate issued by the bank indicating that
cheque number 865233 dated 16.1.2006 was issued by the petitioner
favouring opposite party no.2 for a sum of Rs.2.00 lac which was paid to the
holder of the cheque on the same date.
From the perusal of the impugned order passed by the learned Magistrate it is
evident that the main reasoning on the basis of which he has discharged
opposite party no.2 under section 203 Cr.P.C. is that the petitioner knew since
before that the land in question is not the property of opposite party no.2
despite the petitioner handed him over a cheque for Rs.2.00 lac and therefore,
it can not be said that opposite party no.2 had cheated the petitioner. The
learned Magistrate in his impugned order has mentioned that the receipt said
to have been issued by opposite party no.2 showing that he had received the
cheque is not admissible because the same has not been proved in accordance
with the provisions of Indian Evidence Act. This is second ground of
discharge by the learned Magistrate. The third ground of discharge is that
there was no written agreement between the petitioner and opposite party no.2
for sale of the land in question and it was only oral. The fourth ground is that
the papers relating to the land in question were in the name of one Rama Nand
Tripathi and not in the name of opposite party no.2.
in the above reference I have to say that the learned Magistrate while dealing
with the matter forgot to take into consideration the following facts and
questions:-
1. Why opposite party no.2 had specifically asked the
petitioner to give him a bearer cheque for Rs.2.00 lacs.
In such matters fairness demands that cheque should be
an account payee cheque as it always happens in fair
dealings.
2. The conduct of opposite party no. 2. The cheque was
given to opposite party no.2 by the petitioner and the
former accepted the same and either he (opposite party
no.2) got it cashed or gave it to some one to get it
cashed.
3. If there was no bad intention on the part of opposite
party no.2 why did he accept the cheque, thereafter got
it cashed and why did he not return the money to the
petitioner despite the fact that the land in question was
sold away to some other person.
The reasonings given by the learned Magistrate while discharging the accused
of the case appears to this Court altogether absurd. He has disposed of the
complaint of the petitioner without appreciating in a proper and logical
manner the facts of the case. He should have considered the conduct of
opposite party no.2 as reflected in the complaint, oral evidence adduced and
the papers produced before him in this case, but he has not done so.
It is well settled that at the stage of inquiry the Magistrate has only to decide
whether there is sufficient ground to proceed 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. It has been so held by the Apex Court in (2004) 4 SCC 432,
Jagdish Ram Vs. State of Rajasthan and (2003) 4 SCC 139, Dy. Chief
Controller of Imports and Exports Vs. Roshan Lal Agrawal.
The underlying object of the inquiry under section 202 Cr. P.C. is to ascertain
whether there is prima facie case against the accused. The scope of inquiry
under section 202 Cr.P.C. is extremely limited. At that stage, what a
Magistrate is called upon to see is whether there is sufficient ground for
proceeding with the matter, and not whether there is sufficient ground for
conviction of the accused. It has been so held by the Supreme Court in the
case of Chief Enforcement Officer Vs. Videocon International Ltd. (2008)
2 SCC 492.
In (2002) SCC 241, S.W.Palanitkar Vs. State of Bihar the Apex Court has
defined the word ‘Suffiicient Ground’ occurring in Sections 203 & 204
Cr.P.C. Sufficient ground has to be construed to mean the satisfaction that a
prima facie case is made out against the accused and not for the purpose of
conviction.
In Balraj Khanna Vs. Moti Ram (1971) 3 SCC 399 the Supreme Court has
held that ” the object of the provisions of Sec. 202 Cr.P.C. is to enable the
magistrate to form an opinion as to whether the processes should be issued or
not. At that stage what the Magistrate has to see is whether there is evidence
in support of the allegations made in the complaint and not whether the
evidence is sufficient to warrant conviction. The function of the Magistrate
holding a preliminary inquiry is only to be satisfied that a prima facie case is
made out against the accused on the material placed before him by the
complainant.”
The learned Magistrate has also erred while holding the view that at the stage
of inquiry under section 202 Cr. P.C. the documents produced by the
complainant should be proved strictly in accordance with the provisions as
laid down in Indian Evidence Act. He should not have forgotten that he was
only making an inquiry in the case so as to decide whether there is sufficient
ground for proceeding or not, but here he had stepped ahead and behaved in a
manner that if he was holding trial of the case.
The discharge order of the learned Magistrate is silent regarding the
allegations levelled by the petitioner in his complaint against opposite party
no.2 relating to alleged offences punishable under sections 323/504/504 IPC.
He should have also considered these facts, but he has not done so.
In the above circumstances I have no hesitation in holding that the impugned
order passed by the learned Magistrate is bad in the eyes of law and should be
quashed.
I am surprised to peruse the judgment and order passed by learned Additional
Sessions Judge in revision. He has decided the revision as if he was deciding a
civil revision and not a criminal one. It appears that he too forgot the relevant
provisions of law which deal such matters. There is a fine distinction between
the offence punishable under sections 420/406 IPC on one hand and civil
liabilities of the person accused, on the other hand. But this distinction is
always distinctly visible provided one tries to see it and makes an effort for
the same. From perusal of the revisional order impugned here it is evident that
the learned Additional Sessions Judge has made absolutely no effort to find
out this distinction. It is expected of an additional sessions judge that he
should be more conversant about laws as compared to a magistrate. In the
instant case it appears that the learned Additional Sessions Judge has blindly
followed the findings given by the learned Magistrate without going deep into
the matter.
On the basis of the foregoing discussions, I am also of the view that the
judgment and order passed by the learned Additional Sessions Judge in
revision is also bad in eyes of law and should be quashed.
I have given a serious thought to the entire matter and after considering the
over all circumstances of the case I am of the view that the matter should be
remanded back to the learned Chief Judicial Magistrate, Lucknow for
considering afresh the complaint dated 30.1.2008 filed by the petitioner as the
complainant before the learned Special Chief Judicial Magistrate (Customs),
Lucknow. The learned C.J.M. is directed either to dispose of the matter
himself or transfer it to some other competent court other than the court of Sri
Suresh Chandra, Special C.J.M. (Customs), Lucknow. The learned C.J.M. or
the learned Magistrate to which the said complaint case may be transferred is
directed to dispose of the matter at the earliest.
The petition is allowed. Both the orders impugned in this petition are quashed
and set aside. The matter is remanded back to the learned C.J.M., Lucknow
who will deal with the matter in the light of the observations made by this
Court above.
Order Date :- 4.2.2010
IA