IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Misc. No.26938-M of 2005 Om Pal and another … Petitioners Versus State of Punjab … Respondent 2. Criminal Misc. No.20678-M of 2009 Surender Kumar … Petitioner Versus State of Punjab … Respondent Date of decision: 30th April, 2010 CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. J.R. Mittal, Senior Advocate with Mr. Kashmira Singh, Advocate for the petitioners in Criminal Misc. No.26938-M of 2005. Mr. Wazir Singh, Advocate for Mr. Harkesh Manuja, Advocate for the petitioner in Criminal Misc. No.20678-M of 2009. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the State. Mr. Ram Bilas Gupta, Advocate for complainant-respondent in Criminal Misc. No.26938-M of 2005. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Criminal Misc. No.26938-M of 2005 & Criminal Misc. No.20678-M of 2009 By this common order, (1) Criminal Misc. No.26938-M of 2005 filed by Om Pal and Atul Kumar and (2) Criminal Misc. No.20678-M of 2009 instituted by Surender Kumar, shall be decided together. The petitioners have prayed that order dated 30th August, 2004 (Annexure P-6) passed by the Court of Judicial Magistrate, Talwandi Sabo, whereby they have been summoned to stand trial in case FIR No.36 dated 22.05.2001 registered at Police Station Maur Mandi under Sections 420, 467, 468, 471, 120-B IPC, be quashed. The case projected by the counsel for the petitioners is that the petitioners were placed in column No.2 and a challan (report under Section 173 Cr.P.C.) (Annexure P-1) was submitted. While framing charge, after considering the report under Section 173 Cr.P.C., the Court of Sub Divisional Judicial Magistrate, Talwandi Sabo came to the conclusion that prima facie there was evidence against the accused- petitioners though placed in column No.2 in the report, and that they be summoned to stand trial. Mr. J.R. Mittal, Senior Advocate assisted by Mr. Kashmira Singh, Advocate has made following three submissions before this Court: (a) The order of summoning the petitioners is not a speaking one as it discloses no reasons as to why the petitioners have been summoned to stand trial, especially when they were absolved by the investigating agency. (b) Secondly, it is submitted that the petitioners were bonafide purchasers from Fateh Trading Company and while making purchases, they have made the entire payment to the said Company, which was bound to account for the same, and Fateh Trading Company had issued K.K. Form to the petitioners. Therefore, the petitioners had submitted the K.K. Form. 2 Criminal Misc. No.26938-M of 2005 & Criminal Misc. No.20678-M of 2009 (c) Lastly, learned counsel has submitted that in case market fee has not been paid, offence of cheating will not be attracted, as on passing of the assessment order, market fee can be paid. There is a provision and remedy available under the Act for recovery of the market fee, therefore, the petitioners cannot be fastened with criminal liability. To fortify this submission, reliance has been placed on a judgment rendered in case ‘Anil Ritolla @ A.K. Ritolia v. State of Bihar’ JT 2007 (11) SC 147. I have given my thoughtful consideration to the aforesaid submissions. In the peculiar facts and circumstances of the case, this Court is of the opinion that these arguments cannot be examined at this stage. To meet the first argument, it was held by a Division Bench of this Court in ‘Krishan Murari and others v. Mohinder Pal’ 1983 (1) RCR (Criminal) 21 that there is no legal requirement that the summoning order ought to be a speaking one. It is stated that so long as the summoning order reflects application of mind, no fault can be found with the same. A perusal of the summoning order reveals that the Sub Divisional Judicial Magistrate had recorded that prima facie grounds exist to summon the accused. As far as the second submission is concerned, the FIR was registered for all offences read with Section 120-B IPC. In case of offence of a criminal conspiracy, a reference can be made to the illustration of Section 10 of the Indian Evidence Act, 1872. If there is commission of offence, any act of omission or commission of one accused will become act of another even though, he was not having requisite knowledge. What is the conspiracy, how it was hatched and when it was arrived at, are all 3 Criminal Misc. No.26938-M of 2005 & Criminal Misc. No.20678-M of 2009 questions of evidence, for which a fair opportunity ought to be granted to the prosecution to lead evidence. The last argument that under the provisions of the Act, on passing of assessment order, the market fee can be deposited as there is a remedy available under the act, cannot be considered as in the present case, along with Section 420 IPC, offence under Section 467, 468 and 471 IPC have also been made out. The prosecution case is that K.K. Form was forged and fabricated, therefore, it is also a question dependent upon evidence and same cannot be examined in a petition filed under Section 482 Cr.P.C. Hence, there is no merit in the aforesaid petitions and the same are hereby dismissed. However, taking into consideration long pendency of the litigation, personal appearance of the petitioners before the trial Court is exempted, subject to their filing of an undertaking that they shall cause their appearance as and when required by the trial Court. They shall also undertake that the evidence, if any, recorded in their absence but in the presence of their counsel, shall be binding upon them. The trial Court may incorporate any other condition in the undertaking to be furnished by the accused. [KANWALJIT SINGH AHLUWALIA] JUDGE April 30, 2010 rps 4