Madho Ram vs Suresh Kumar

R.L. Anand, J.

This is a criminal revision and has been directed against the order dated 31.3.1998 passed by the Addl. Sessions Judge, Patiala, who partly allowed the revision of Suresh Kumar and directed that the charges u/ss 465/468/471 IPC be not framed against him and that he shall face trial for the offence u/s 420, IPC only.

The brief facts of the cases can be described in the following manner :

Madho Ram filed a criminal complainant before the Illaqa Magistrate u/ss 420/465/468/471, IPC. The learned Magistrate after recording the preliminary evidence thought proper that the accused should be summoned only u/s 420 IPC. Thereafter, the learned Magistrate vide his order dated 17.2.1997 decided to frame charges against the respondent u/ss 420/465/468/471 IPC by giving the following reasons :

"7. Narinder Singh clerk IOB has proved cheques Ex.C.2 and C.3 in the name of I.O.B. having been issued by Suresh Kumar accused and these cheques bears the stamp "for Ram Chand and Sons" of the accused firm. He has further deposed that the cheque book from which cheques have been issued does not pertain to the account of the accused and this cheque book pertains to the account of one "News Lake" and he has proved the relevant record and those documents are Ex. PW1/A to PW1/D. Suresh Kumar clerk SBP Patiala Branch at Rajpura PW2 has proved memo Ex. C.5 according to which payment of Rs. 60,000/ was not given to the complainant as there was no account of the accused in the I.O.B. Madho Ram PW.3 complainant has categorically deposed that the accused has purchased cloth from him on credit and in lieu thereof he has issued above said 2 cheques for an amount of Rs. 60,000/ but when these cheques were presented in the bank and were sent to the concerned I.O.B. then the same were returned as there was no account of the accused in I.O.B. Dial Ram PW4 has proved Ex. C.7 to C.79 bills vide which the accused has purchased cloth from the complainant.

The perusal of the cheques Ex.C.2 and C.3 each for an amount of Rs. 30,000/ shows that these cheques bear the stamp of the firm of the accused named as "Ram Chand and Sons". Both these cheques have been issued by Suresh Kumar accused. It has come in evidence as stated above that there was no account of the accused in I.O.B. and he was issued the aforesaid cheques after stealing these cheques from the cheque book of some person/proprietor of "News Lake". So evidence in this case shows that the cheques Ex. C.2 and C.3 have been issued by accused Suresh Kumar with mala fide intention just to cheat the complainant and he has also committed offences of forgery by forging these cheques as he has put the stamp of his firm just to show that these cheques belong to his account in the bank. So all this evidence shows that the accused has committed forgery and has also committed offence of forgery by preparing forged cheques though there was no account of the accused in the bank with respect of the above said cheques.

It has been argued by the defence counsel that already an ex parte civil suit has been decided in favour of Madho Ram complainant and thus the proceedings in the present complainant should be stayed. However, there is no force in this contention because if civil suit has already been decided and then that fact rather supports the case of complainant Madho Ram because a finding has been given by the Civil Court that Suresh Kumar has to pay an amount of Rs. 60,000/ for which he has purchased cloth from complainant Madho Ram."

Aggrieved by the order, Suresh Kumar, respondent, filed the revision before the revisional court at Patiala and the learned revisional court partly allowed the revision by holding that once the Magistrate thought proper not to summon the accused u/ss 465/468/471 IPC, it was not within his competency to, again, frame the charges under these sections. The revisional court, however, held that the charge could be framed against the respondent u/s 420 IPC. The revisional court mainly relied upon the judgment of the Allahabad High Court reported as Sheoraj and others v. Emperor, A.I.R. (35) 1948 Allahabad 46 and the reasons given by the revision court are contained in paras 5 to 8, which read as under :

"5. The first point raised by the learned counsel for the petitioner/accused is that once the order of summoning was passed by the lower court under section 420 of the Indian Penal Code, then the complaint was deemed to have been dismissed for the remaining offences. Thus no charge could be framed under sections 465/468 and 471 of the Indian Penal Code. In support of his contention he has relied upon the authority Sheoraj and others v. Emperor, A.I.R. 1948 Allahabad 46.

On the other side, learned counsel for the complainant has submitted that no fault can be found with the order of framing the charge. Section 246 of the Code of Criminal Procedure does not restrict the power of the Magistrate to frame a charge to cases where the offence disclosed on the evidence is the same as the one mentioned in the complaint on which cognizance was taken. The Magistrate can frame a charge for the offence made out on the evidence though it may be different from the one alleged in the complaint. In support of his contention, he has relied upon the authorities Manik Lal v. The State of Bihar, A.I.R. 1950 Patna 500 and State of West Bengal v. Laisal Haque, A.I.R. 1989 Supreme Court 129.

I find that there is force in the contention of the learned counsel for the accused/petitioner. Admittedly the lower Court summoned the accused under Section 420 of the Indian Penal Code and the implied effect of summoning order was that the complaint was dismissed with regard to the offences under sections 465/468 and 471 of the Indian Penal Code. Thus later on he could not proceed to charge sheet the accused under these sections. This view is supported by the authority Sheoraj and others v. Emperor (supra). In that case the complaint was filed under sections 426, 504 and 506 of the Indian Penal Code. The Magistrate proceeded only under section 426 of the Indian Penal Code. It was held that the order amounted to dismissal of the complaint with regard to the charges under sections 504 and 506 of the Indian Penal Code. The authority Manik Lal v. The State of Bihar (supra) relied upon by the learned counsel for the complainant is entirely on different footing. In that case the Magistrate who summoned the accused and took the cognizance transferred the case to some other Magistrate who on the basis of the evidence framed charge against the accused for different offences as disclosed by the evidence.

In the result, the charge framed by the lower Court against the accused/petitioner under Sections 465/468 and 471 of the Indian Penal Code deserves to be quashed."

This time the complainant is aggrieved and he has filed the present revision.

The principle argument, which was raised by the learned counsel for the petitioner is that the stages u/ss 204 and 246, Cr.P.C. are separate. Even if the respondentaccused has not been summoned u/s 204, IPC, it does not debar the Magistrate/trial court to exercise his power u/s 246, Cr.P.C. and he can still formulate the opinion whether the accused has committed any other offence than the one under which he was summoned. In support of his contention, learned counsel for the petitioner relied upon Sohan Lal and others v. State of Rajasthan, 1990(3) RCR 610 .

On the contrary, the learned counsel for the respondent submits that the revisional court has acted in accordance with law in setting aside the decision of the Magistrate who decided to frame charges against the respondent u/ss 465/468/471, IPC. In the opinion of the learned counsel for the respondent, the framing of the additional charges by the Magistrate amounts to review of his own order vide which the respondent was summoned u/s 420, IPC.

The learned counsel for the petitioner has met the argument of his rival by stating that the Hon''ble Single Judge of the Allahabad High Court did not take notice of the provisions of Sections 216 and 319, Cr.P.C. and this aspect of the case was considered by the Hon''ble Supreme Court in Sohan Lal''s case (supra). In support of his contention, para7 of this judgment has been pertinently relied upon by the counsel for the petitioner.

After considering the rival contentions of the parties, this Court is of the opinion that sections 204 and 246, Cr.P.C., play in their own spheres. When the Magistrate exercises powers either u/s 203 or u/s 204, Cr.P.C. he passes the decision under these sections after recording preliminary evidence and, prima facie, forms an opinion as to whether a particular accused should be summoned and if so under which section. Section 204 comes under Chapter XVI, which deals with the commencement of proceedings before Magistrate whereas section 246 forms part of chapter XIX.

Section 244, Cr.P.C. lays down that when in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245, Cr.P.C. lays down that if, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Further, section 246 lays down that when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

Thus, a reading of the above provisions would show that the Magistrate has the competency to frame the charges and to proceed with the trial for these offences even against which he earlier did not think proper to summon the accused. At the stage of trial, though the learned Magistrate is not supposed to examine critically the evidence led by the complainant, yet he can form an opinion, prima facie, as to which offence had been committed by the accused. The effect of the earlier order passed by the Magistrate vide which he did not think proper to summon the accused u/ss 465, etc. is that under those provisions at that stage, the accused was deemed to have been discharged, but that order does not detract the learned Magistrate to form an independent opinion u/s 246, Cr.P.C. Even the learned Magistrate u/ss 216 and 319, Cr.P.C. has the power to amend the charge or summon the accused even if at one point of time, he though it proper not to summon the accused u/s 319, Cr.P.C. The scope of sections 204 and 246, Cr.P.C. is totally different.

The argument which has been raised before me by the learned counsel for the respondent was considered by the Hon''ble Judges of the Supreme Court in Sohan Lal''s case (supra) and after interpreting the provisions of sections 216 and 319, Cr.P.C., ultimately, the Hon''ble Judges held that the Magistrate was fully competent to take cognizance of the offence on the basis of evidence recorded by him though for the same offences order of discharge was passed by his earlier.

In this view of the matter, I am of the opinion that the impugned order passed by the learned Addl. Sessions Judge, Patiala, cannot be sustained. Resultantly, the revision stands allowed. The impugned order dated 31.3.1998, passed by the Addl. Sessions Judge, Patiala, is hereby set aside and the order dated 17.5.1997 passed by the S.D.J.M., Rajpura, is upheld. Now, the respondent shall face the trial for the charges which have been framed against him vide order dated 17.5.1997.

Revision allowed.