IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Revision No.68 of 2008. Judgment Reserved on: 12.10.2009. Date of decision: 29.10.2009. Suman Bala & Another …Petitioners. Versus Narotam Naresh Walia …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioners: Mr.Ajay Kochhar, Advocate. For the Respondents: Mr.Ramakant Sharma, Advocate. Dev Darshan Sud,J. This revision has been filed against the order of the learned Sessions Judge, Kangra at Dharamshala, reversing the judgment of the learned Additional Chief Judicial Magistrate, Dehra in Criminal Complaint No.154-1 of 2006 dismissing the complaint instituted by the complainant Narotam Naresh Walia. The complainant pleaded that his wife Smt.Prem Lata Walia had built a shopping Complex-cum- Guest House at Dehra in the year 2005. He had 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 requested Shri Rajesh Banta son of Shri Mansha Ram Banta to arrange for some money through a financier at Shimla. Rajesh Banta introduced the complainant to Ms.Suman Bala, who was running financing business at Shimla, and a sum of Rs.90,000/- was advanced on 21.7.2005 through Shri Rajesh Kumar Banta which was to be repaid in ten monthly installments of Rs.10,000/- each. Ms.Suman Bala is alleged to have procured cheque No.840787, dated 21.7.2005 from the complainant of his Saving Bank Account No.630 maintained in Punjab National Bank, Dehra, for a sum of Rs.1,00,000/- as a security for the aforesaid payment. The complainant alleged that he repaid an amount of Rs.40,000/- to the accused by way of bank draft No.651165, dated 4.10.2005 and another draft No.651336, dated 29.10.2005 of Rs.10,000/- and Rs.20,00/- in cash through Rajesh Banta. Since the validity of cheque No.840787, dated 21.7.2005 was to expire, therefore, Ms.Suman Bala asked the complainant for one more post- dated cheque through Rajesh Banta to be kept as security for repayment. The complainant duly complied with it and a blank post-dated cheque No.504629 of Rs.one lac was given to respondent Ms.Suman Bala. Accused Suman Bala with malafide intention, despite having received the entire loan amount, presented the cheque and withdrew the entire Rs.one lac for which she was legitimately not entitled to. It was pleaded that the accused be proceeded against for offences 3 under Sections 465, 463, 471, 417, 418, 420 and 511 read with Section 34 of the Indian Penal Code and punished accordingly. On consideration of the evidence on record, the learned trial Magistrate dismissed the complaint holding that no prima facie case had been made out. While reaching this conclusion, the learned Magistrate scrutinized the material/evidence on record to see if a prima facie case was made out or not and relied upon the decision of the Supreme Court in M/s.Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others, AIR 1998 SC 128. The complainant preferred a revision against this decision before the learned Sessions Judge, who vide the impugned judgment set aside the order holding that the learned trial Magistrate has exceeded his jurisdiction in law in arriving at a conclusion that no case is made out since the learned Court has pointed out certain contradictions in the form of omissions in the complaint/evidence which exercise could not be undertaken at the stage of consideration of complaint for issuance of process under Section 202 of the Code of Criminal Procedure, 1973, (hereinafter referred to as the `Code’). The accused are now in revision before this Court. I have heard learned counsel for the parties and have gone through the record of the case. 4 The primary question for consideration is the jurisdiction of the trial Magistrate under Section 202 of the Code. Learned counsel appearing for the respondents submits that the Supreme Court in Chandra Deo Singh vs. Prokash Chandra Bose alias Chabi Bose and another, AIR 1963 SC 1430 lays down the parameters of the Courts jurisdiction while issuing process. The Court holds:- “8. Coming to the second ground, we have no hesitation in holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is “sufficient ground for proceeding” and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under S.202 has been considered. Amongst those decisions are: Parmanand Brahmachari v. Emperor, AIR 1930 Pat 30; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar AIR 1952 Pat 125; Emperor v. J.A. Finan, AIR 1931 Bom 524 and Baidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the 5 object of the provisions of S.202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant’s evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges in some of these cases have been at pains to observe that an enquiry under S.202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-sec. (1) of S.202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.” 6 He submits that these principles have been reiterated in Smt.Nagawwa vs. Veeranna Shivalingappa Konjalgi and others, AIR 1976 SC 1947, holding:- “4. It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited – limited only to the ascertainment of the 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 out; 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. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. 5. Mr.Bhandare laid great stress on the words “the truth or falsehood of the complaint” and contended that in determining whether the complaint is false the Court can go into the question of the broad 7 probabilities of the case or instrinsic infirmities appearing in the evidence. It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and established of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminate into an order under Section 204 of the Code. Thus it may be safely 8 held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are potently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly 9 irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.” To similar effect is the decision of the Supreme Court in Kewal Krishan vs. Suraj Bhan and another, AIR 1980 SC 1780, laying down that at the stage of issuance of process there can only be a cursory perusal of documents/preliminary evidence for the purpose of determining as to whether a prima facie case is made out and not a meticulous and minute examination of the material/evidence. Learned counsel submits that the stage for examination of the evidence is at the trial stage and not at the point prior in time to it. (See: Hem Chand vs. State of Jharkhand, (2008)2 SCC (Cri)537) and that while exercising revisional jurisdiction, this Court will not undertake a meticulous examination of the evidence before the trial Magistrate. (See: Madhu Limaye vs. State of Maharashtra, AIR 1978 SC 47). 10 Learned counsel appearing for the petitioner relies upon the decision of the Supreme Court in M/s.Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others, AIR 1998 SC 128 holding: “28. 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 would that 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 11 examine if any offence is prima facie committed by all or any of the accused. 29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under S.482 of the Code or Art.227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. … … … … … … … … …” It is by now well settled that at the stage of issuance of process in criminal proceedings or at the stage of framing of charge a meticulous and minute examination of the evidence is not required. This is not the jurisdiction of the Court, but at the same time, the Court cannot be oblivious to the fact that prima facie a cursory though not detailed examination of the complaint and material on record is necessary 12 to ascertain as to whether any offence is made out necessitating the issuance of process or not. The Court is not expected to act as a mouthpiece of the complainant or be a Post Office putting its seal of approval on whatever has been stated in the complaint without ascertaining as to whether the law justifies issuance of process or not. (See: M/s.Pepsi Foods Ltd. supra). The proposition of law well settled by now and affirmed in various decisions is that prima facie scrutiny of the evidence and material on the record is necessary to ascertain as to whether any offence is made out. The evidence/material is not to be sifted through with a fine comb for this purpose. The learned Sessions Judge has not correctly appreciated the principle of law applicable. While reiterating the proposition of law that a detailed examination is not required, he was required to apply his mind to the fact as to whether the material on the record did justify the issuance of the process or dismissal of the complaint. For this purpose what was required to be examined was as to whether the learned trial Magistrate has gone beyond the limits of his jurisdiction as mandated by the law and as articulated and affirmed in various judgments of the Supreme Court from time to time. I do not find that this exercise has been undertaken by the learned Court. In these circumstances, this Court has no option but to remand the case to the learned Sessions 13 Judge who shall decide afresh to ascertain as to whether a prima facie case is made out for issuance of process to the accused and whether there is sufficient material on the record which prima facie establishes the complicity of the petitioners herein in the offences alleged against them. Parties are directed to appear before the learned Sessions Judge, Kangra at Dharamshala, on 27th November, 2009 who shall thereafter proceed with the case in accordance with law and dispose it of not later than 31st March, 2010. Let the record of the Court below be sent back immediately. October 29, 2009. (Dev Darshan Sud) (aks) Judge.