Rajesh Kumar vs Mahendra Jain

Harphul Singh Brar, J.

In this petition under Section 482 of the Code of Criminal Procedure, a prayer has been made for quashing the complaint filed under Sections 420/406, Indian Penal Code, against the petitioner, annexed as Annexure P3 with the petition and the order, dated March 6, 1991 passed by the SubDivisional Judicial Magistrate, annexed as Annexure P4 with the petition, vide which the petitioner was summoned under Section 420, Indian Penal Code.

For the disposal of this petition, the barest minimum facts need be taken note of. A complaint was filed against the petitioner by Mahendra Jain under Sections 420/406, Indian Penal Code, alleging therein that on May 6, 1987, the accusedpetitioner approached him for purchase of Rayon Godet Waste and after inspecting and approving the Rayon Waste (hereinafter referred to as R.G.W.), he purchased 41 bags of R.G.W. White containing 2426 Kgs. at the rate of Rs. 16/ per Kg. Vide bill No. 225, dated May 5, 1987, for Rs. 38,816/. The complainant insisted on cash payment but on the assurance and representation of the accusedpetitioner, he agreed to accept two postdated cheques bearing Nos. 241718 for Rs. 18,000/ and 241719 for Rs. 14,000/ respectively. The accusedpetitioner assured the complainant that the first Cheque of Rs. 18,000/ be presented on May 27, 1987 for encashment and regarding the other Cheque, the date of presentation will be intimated later on, so the date column of later Cheque of Rs. 14,000/ was left blank by the accused petitioner. On May 23, 1987, the accusedpetitioner again approached the complainant and purchased 34 bags of R.G.W. White containing 2050 Kgs. at the rate of Rs. 16/ per Kg. vide Bill No. 227 dated May 23, 1987, for Rs. 32,896/, and assured him to furnish Cheque in lieu of the purchase on the same evening, but he did not furnish the Cheque. On May 26, 1987, the accusedpetitioner contacted the complainant and requested him not to present the Cheque on May 27, 1987 since he could not make arrangements for payment and assured that he would clear the dues before June 15, 1987. Again, on June 13, 1987, the accusedpetitioner asked the complainant to wait till June 23, 1987 and furnished also a Cheque for Rs. 7,000/ to cover the balance of the first Bill and to adjust towards the interest for late payment of the first Bill. On enquiry by the complainant, he was told by the Bank personnel that there was no adequate balance in the account of the accusedpetitioner to get the said Cheque encashed. On October 14, 1987, the complainant sent Cheque No. 241718 for Rs. 18,000/ to the Bank which was also returned as dishonoured.

On November 4, 1987, the complainant served a notice upon the accused petitioner which was received by him, but he neither furnished any reply nor did he acknowledge the said notice. Thus, this complaint was filed.

The complainant appeared himself as PW1 and reiterated all the allegations made in the complaint.

On the basis of the complaint and the statement of PW1, the learned Sub Divisional Judicial Magistrate, Panipat, summoned the accusedpetitioner under Section 420, Indian Penal Code.

Hence, this petition.

The learned counsel for the petitioner has assailed the summoning order, dated March 6, 1991, passed by the learned SubDivisional Judicial Magistrate, Panipat, on various grounds and has also contended that the complaint, Annexure P3 may also be quashed by this Court. The argument, in a nutshell, is that the order is based on irrelevant consideration or nonconsideration of relevant factors.

Without going into all the contentions raised by the learned counsel for the petitioner, I feel that this petition is liable to be dismissed on the short ground that the order of the learned SubDivisional Judicial Magistrate, Panipat, dated March 6, 1991 is an interlocutory order. He had summoned the accusedpetitioner under Section 420, Indian Penal Code. Section 397 of the Code of Criminal Procedure provides that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purposes of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Section 397(2) of the Code mandates that the powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. The summoning order passed by the learned SubDivisional Judicial Magistrate is, thus, an interim order and no Revision Petition is competent against that order, under the Code of Criminal Procedure. For this proposition, there are a string of authorities both of various High Courts as well as the Supreme Court. However, it is not necessary to refer to all of them. Even one would suffice, and K.M. Mathew v. State of Kerala and another, 1992(1) RCR 232 may be referred to with advantage. It will, however, be useful to reproduce the following observations for ready reference :

"......Section 204 of the Code indicates that the proceedings before the Magistrate commence upon taking cognization of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused.

It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment.

It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused."

Consequently, this petition is dismissed. It will, however, be open to the accusedpetitioner to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint and the statement of the prosecution witness that no offence was made out for which the accused could be tried.

Criminal Miscellaneous Application No. 1 of 1992 stands disposed of accordingly.