Ayub Ali vs State Of Uttarakhand & Another

Lok Pal Singh, J

By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the summoning order dated 03.12.2012, passed by learned Judicial Magistrate, Dehradun, in criminal complaint case no. 865 of 2012, Arun Gupta vs Ayub Ali, under Section 420 of IPC, as also the entire proceedings of aforesaid criminal complaint case pending in the selfsame court.

2) Brief facts of the case are that the applicant is a contractor and is engaged in the work of construction and erection of mobile towers on labour rate basis. Respondent no. 2 was awarded work of construction of 04 mobile towards by B.S.N.L in the area of Air Force, New Delhi, and an agreement in this regard was executed with the applicant for the construction of aforesaid mobile towers in the locations mentioned in the agreement. Out of the aforesaid 04 towers, the work of two towers was completed and the same were handed over to respondent no. 2 for which the applicant was entitled a sum of Rs.3,00,000/-, as per the rates agreed between the parties. It is alleged in the C-482 petition that till date of completion of these two towers only Rs.2,00,000/- were paid to the applicant. The applicant made repeated request to the respondent no. 2 for payment of balance amount in regard to erection of 02 mobile towers, but to no avail. It is contended that the execution work was delayed owing to above factors and due to which the applicant had to suffer huge losses. It is also contended that the applicant had received a sum of Rs.2,00,000/- for the work done by him and he had already completed the work of two mobile towers out of total four towers. It is further contended that there is no dishonest intention on the part of the applicant right from the inception or at a particular point of time and a civil dispute has been given the colour of criminal offence at the behest of respondent no. 2.

3) In the meantime, respondent no. 2 preferred a criminal complaint case no. 865 of 2012, Arun Gupta vs Ayub Ali, in the court of Judicial Magistrate, Dehradun, under Section 420 of IPC, stating therein, that the applicant despite receiving an amount of Rs.2,04,100/-, as advance, has not completed the work and hence cheated the respondent no. 2.

4) After registration of aforesaid criminal complaint, the complainant got himself examined under Section 200 Cr.P.C. and one Sunita Dharia as witness under Section 202 Cr.P.C. After perusal of the complaint and having considered the statements of the complainant as well as the witness, the Judicial Magistrate, Dehradun, vide order dated 03.12.2012 took cognizance on the complaint filed by the complainant and summoned the applicant for allegedly committing an office punishable under Section 420 IPC. Hence, present C-482 petition.

5) Learned counsel for the applicant would submit that the applicant being resident of an area outside the territorial jurisdiction of the Magistrate who had issued summons, an inquiry within the meaning of Section 202 Cr.P.C. was necessary and that only after such inquiry, Magistrate was required to come to the conclusion as to whether sufficient grounds exist for proceedings against the applicant.

6) Learned counsel for the applicant placed reliance upon the judgment of Hon'ble Apex Court in the case of National Bank Of Oman vs Barakara Abdul Aziz And another (2013) 2 SCC 488, wherein it is held that in cases where accused reside beyond the area over which Magistrate concerned exercise jurisdiction, it is incumbent upon the Magistrate to carry out inquiry or order investigation under section 202 Cr.P.C. before issuing process.

7) Before further discussion, it would be apt to mention here Section 202 of Cr.P.C., which is extracted hereunder:

"202. Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-incharge of a police station except the power to arrest without warrant."

8) The case-law cited by the learned counsel for the petitioner is of no help to the petitioner, as the Hon'ble Apex Court in the judgment of National Bank of Oman1, in further paragraphs, has held as follows:-

"9. 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. 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.

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 sub-section (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.

9) The purpose of amendment in section 202 Cr.P.C. is to ascertain that innocent persons are not harassed by unscrupulous persons. There are two situations mentioned in the provisions that the Magistrate himself shall enquire into the matter or direct investigation to be made by police officer or such other persons as he thinks fit. Thus, investigation through the police would be conducted, when the Magistrate before whom the complaint is filed is not satisfied, and the Magistrate thinks it fit that the matter be inquired through police or through other persons. The facts of the Judgment (supra) cited by the learned counsel for the petitioner are entirely different. In that case, it was alleged before the Court that just to harass the petitioners, summoning order has been passed and that they have been falsely implicated. In the case at hand, there is no such pleading by the applicant.

10) The position would be otherwise, if the applicant would have challenge the summoning order on the ground, that the allegations made in the complaint and that of in the statement recorded under Section 200 Cr.P.C. are false and that the complaint has been filed just to harass him. But, the averments made in the complaint have not been denied. As far as the statement recorded under Section 200 of Cr.P.C. is concerned, the complainant has filed the statement on oath by way of affidavit. The complainant has also filed documentary evidence to consider the statement and evidence under Section 202 of Cr.P.C. Documentary evidence filed by the complainant is sufficient to consider the statement under Section 202 of Cr.P.C. Thus, there is no requirement to adduce the oral evidence under Section 202 of Cr.P.C. as well as for the learned Magistrate to carry out inquiry or order investigation under Section 202 Cr.P.C. before issuing process.

11) Their Lordships of the Hon'ble Supreme Court in the case of Sonu Gupta vs Deepak Gupta (2015) 3 SCC 424, have held that prima facie satisfaction of the Magistrate concerned is sufficient for summoning the accused. The relevant paragraphs of said judgment are excerpted here-in-below:

"7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accuse persons before the courts below or in this Court lest it prejudices one or the other party in future.

Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."

12) Hon'ble Apex Court in Amit Kapoor vs Ramesh Chander (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations, as made from the record of the case and the documents submitted therewith, prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.

13) The Hon'ble Apex Court in Para 28 of ruling of Rajiv Thapar vs Madan Lal Kapoor (2013) 3 SCC 330 has held as under:-

"28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."

14) In the light of aforesaid, this Court is of the view that prima facie a case is made out against the applicant. Learned Magistrate has rightly passed the summoning order against the applicant in respect of the offence punishable under Section 420 of IPC. Learned counsel for the applicant has failed to show any illegality or perversity or any miscarriage of justice committed by the court below while passing order of summoning against the applicant.

15) In view of the findings recorded above, criminal misc. application filed under Section 482 of Cr.P.C. fails and is hereby dismissed.