IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 69 of 2005. Reserved on 15.7.2008. Date of Decision: 21. 07.2008. _______________________________________________________ Anil Sanyal. Petitioner Versus Dharam Chand and another. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?No. For the Petitioner : Mr. Ashwani Sharma, Advocate. For the respondent No.1. Mrs. Ranjana Parmar Advocate. For respondent No. 2: Mr. Lalit K. Sharma, Advocate. Surinder Singh, J.(oral) Petitioner seeks to quash the order dated 17-3-2005 summoning him in the complaint filed by respondent Dharam Chand, by the learned Judicial Magistrate Court No.3 Mandi in Criminal complaint No. 97-II/2003 for the offence punishable under Section 420 of the Indian Penal Code. As a matter of fact, respondent Dhram Chand, Incharge Milk Chilling Centre Kotli, District Mandi had filed a complaint against the petitioner under Section 182, 409, 420 and 468 of the Indian penal Code, accusing him that the petitioner being his Senior Manager (Plants), on 10.3.1999 accompanied him to the Urban Cooperative Bank Mandi. The petitioner-accused borrowed a sum of rupees 20,000/- in the name of respondent/complainant which was kept a guarded secret by him nor he repaid the amount to the Bank. This fact came to his knowledge when the Bank served a legal notice for the recovery of Rs. 33, 128/- and in reply to that, he supplied all the factual details on 14.8.2003. Shri Ashwani Kumar and Ramesh Whether the reporters of Local Papers may be allowed to see the judgment?Yes. - 2 - Chand were also shown having stood sureties for the said loan. The petitioner is alleged to have fraudulently got signed the loan documents from him and received the money. The complainant had contacted the petitioner and also to the sureties but it yielded no result. A complaint was also made to the Chairman of the Cooperative Bank regarding the fraud committed by the petitioner vide his letter dated 13-2-2003 along with the affidavits of the said sureties but nothing was done by him. Thus he filed the complaint. Affidavits of the sureties which were enclosed with the complaint made to the Chairman aforesaid were also appended. The preliminary evidence was led before the trial Court. Shri Ashwani Kumar and Ramesh Chand Sharma, alleged sureties were examined. According to them, the petitioner had informed them at the time of taking loan to stand surety for loan which he would take on behalf of Dharam Chand and he (petitioner) would return the bank loan. Learned trial Court after perusing the copies of loan documents and the preliminary evidence found sufficient grounds to issue the process against the petitioner under Section 420 I.P.C. Heard. It is a settled law that if no sufficient ground is made out, the Magistrate has the jurisdiction to dismiss the complaint irrespective of the offences mentioned therein at the stage where the Magistrate has to consider whether he should proceed with the complaint or dismiss it. He is not expected to make a detailed evaluation of the evidence. All that the Magistrate has to see is whether “there are sufficient grounds for proceeding” against the accused. The test is not whether there will be conviction but whether a prima facie case has been made out, order of summoning must spell out the application of judicial mind to the material before him. - 3 - In the facts and circumstances of the case, there appears to be reasonable grounds to believe from the preliminary evidence and the loan papers, wherein the petitioner Anil Sanyal has also been cited as a witness, shows his presence at the relevant time. On the strength of the above evidence, prima facie, the accused-petitioner is shown to have committed an offence of cheating which is complete as soon as the accused-petitioner obtained the money by a promise which he knew he would not fulfill. The test of criminality is what was in the mind of the accused at the time when he realized the money. Where pursuance to some deception the property/money is delivered the offence comes within the mischief of Section 420 of the Indian Penal Code. Therefore, in the above facts and circumstances, prima-facie there are sufficient grounds to issue the process in the instant case which cannot be said to be an abuse of process. Accordingly the petition is dismissed. (Surinder Singh) Judge. July 21 , 2008. (bm)