Hassan Khan vs State of Haryana and Another

Rajesh Bindal, J.—The prayer in the present petition filed u/s 482 Cr.P.C. is for setting aside order dated August 17, 2002 passed by learned Sub Divisional Judicial Magistrate, Nuh, whereby the petitioner has been directed to be summoned in a complaint filed by respondent No.2 under Sections 419, 420, 467, 468, 471 read with Section 120-B IPC and further order dated November 6,2006 passed by learned Sessions Judge, Gurgaon, whereby the revision against the above referred order has been dismissed as not competent.

Briefly, the facts are that respondent No.2 filed complaint against the petitioner, who is his real brother, along with Fazrudin son of Sh. Mohar Khan and Rasul Khan son of Sh. Munira, under Sections 419,420,467,468,471 read with Section 120-B IPC in the Court of learned Sub Divisional Judicial Magistrate, Nuh with the allegations that the petitioner had cheated him by way of misrepresentation, fraud and forging the documents as the same were never executed by him. Though the alleged incident pertained to the year 1985, the complaint was filed in 2001. After recording preliminary evidence, learned Sub Divisional Judicial Magistrate, Nuh ordered the summoning of petitioner and other accused. The petitioner filed revision petition against the order passed by learned Sub Divisional Judicial Magistrate, Nuh, before learned Sessions Judge, Gurgaon, which was dismissed as not competent vide order dated November 6,2006 by relying upon the judgment of Hon''ble the Supreme Court in Subramanium Sethuraman v. State of Maharashtra 2004 ACJ 507 (S.C.) : 2004(4) CCC 307 (S.C.): 2004(4) RCR (Criminal) 349.

Learned counsel for the petitioner submitted that respondent No.2 filed complaint against the petitioner alleging that the surety furnished on behalf of M/ s. Fazrudin and Company at the time of taking the mines on lease (Mauja Indiri) on August 9, 1985, the signatures of respondent No.2/ complainant were misused with dishonest intention as he never stood surety for M/s. Fazrudin and Company. He came to know about the fraud only when he received notice from the Collector, Nuh for recovery of dues. After recording the statement of complainant, learned Judicial Magistrate ordered summoning of the petitioner and other accused and as learned Sessions Judge has also dismissed the revision petition as not being competent, the present petition before this Court was filed.

Learned counsel for the petitioner submitted that it was a case where stale issue was sought to be raised by the complainant, with a view to avoid his liability in the surety furnished for M/s. Fazrudin and Company, otherwise the petitioner does not have anything to do with the dealings of the complainant with the other accused. The petitioner is not even mentioned in any of the documents signed by the parties. He further submitted that solitary statement of complainant was not enough for reaching to a conclusion that prima facie case is made out against the petitioner as there was no other material before the Court to have recorded its satisfaction. Accordingly, the prayer is for quashing of the summoning order dated August 17,2002.

Having heard learned counsel for the petitioner and perusing the impugned summoning order passed by learned Judicial Magistrate, I find merit in the submission of counsel for the petitioner

The petitioner was summoned in the complaint merely on the statement of the complainant and no other material on record. The Hon''ble Supreme Court in M/s. Pepsi Foods Ltd. v. Special Judicial Magistrate 1998 ACJ 16 (S.C.) : 1997(4) RCR (Cri) 761 opined that summoning of accused is a serious matter and unless the Magistrate on application of mind to the facts and preliminary evidence on record is satisfied that there was sufficient material on record only then the accused is to be summoned. The relevant para of the judgment is extracted 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 scrutinize 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".

If the facts of the present case are examined in the light of the law referred to above, it is evident that except a bald statement of complainant reiterating the stand taken in the complaint, there is no material produced before learned a Magistrate justifying the action of setting the criminal law into motion against the petitioner.

Keeping in view the fact that the incident was claimed to be of 198S and the complaint was filed in 2001, the Court had to exercise great caution. There is no documentary evidence on the record to even suggest that prima facie case is made out against the petitioner or that he was even remotely related with transaction or that he had derived any benefit therefrom. The petitioner has no concern with the firm of which the respondent No.2 stood as surety. He has not even signed or thumb marked the document as a witness.

For the reasons stated above, I do not find that the impugned order dated August 17,2002 has been passed by learned Judicial Magistrate by correct appreciation of material on record.

Accordingly, the impugned order dated August 17,2002 passed by learned Sub Divisional Judicial Magistrate is set aside.