Criminal Misc. No. M-12926 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-12926 of 2009 Date of Decision:05.09.2009 Kartar Singh Takkar .....Petitioner Vs. Amrik Singh Barnala .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. B.S. Guliani, Advocate for the petitioner. Mr. Hemant Bassi, Advocate for the respondent. **** HARBANS LAL, J. This petition has been moved by Kartar Singh Takkar under Section 482 of Cr.P.C for quashing of the complaint No.281/1 of 2000 lodged under Sections 107/109/120-B/408/420/468/471 and 477 IPC (Annexure P.1), order dated 29.1.2009 (Annexure P.2) and summoning order dated 25.4.2009 (Annexure P.3) and all other proceedings arising therefrom. The brief facts giving rise to this petition are that the complainant/ respondent filed a complaint Annexure P.1 against the petitioner alleging that there is Degree College of Panjokhra Sahib for which managing body was got registered known as Shri Guru HariKishan Khalsa College Society Shri Panjokhra Sahib, Tehsil and District Ambala. While the construction of the building of the College was in progress, the then Chief Minister of Haryana gave a grant-in-aid to the said Society. The Criminal Misc. No. M-12926 of 2009 -2- petitioner being close to the seat of power wielded his influence and got approved a quotation in the shape of performa invoice attested by the office bearers of the managing body of the institution. The petitioner without any legal authority order, placed an order for supply of cement on the basis of performa invoice as got approved falsely and claimed the payment through cheque No.923562 dated 7.7.1996 by forging wrong endorsement, showing receipt of cement in the name of Baba Charan Singh, Kar Sewa Wale, Kurukshetra. The said cheque could have been given to the suppliers of the cement and not to the recipient of the cheque. Thus with intention not to utilise the money withdrawn for specific purpose of construction of building of the institution, obtained the cheque of Rs.1,30,000/- which amounts to cheating, misappropriation of funds and forgery of documents. On 23.1.2001, the petitioner also filed a complaint against the respondent and three other persons in the Court of learned Illaqa Magistrate, Ambala under Sections 467/468/471/500 read with Section 120-B of IPC alleging that all the accused connived and entered into conspiracy and committed forgery in the record of the society. Since both the complaints were pending in different Courts, the petitioner filed an application No.10 dated 31.5.2002 in the Court of learned Sessions Judge, Ambala for hearing of both the complaints together. The learned Sessions Judge vide order dated 12.8.2002 Annexure P.5 directed that since both the complaints arose out of the same incident, the same be decided together by one Court. So, the complaint titled as `Amrik Singh v. Kartar Singh' was ordered to be withdrawn from the Court of Judicial Magistrate Ist Class and transferred to the Court of learned Chief Judicial Magistrate, Ambala where the same Criminal Misc. No. M-12926 of 2009 -3- was pending. Thereafter, both the complaints were being heard by the learned Chief Judicial Magistrate, Ambala. Both the parties led their preliminary evidence and the proceedings continued under Section 202 of Cr.P.C. On 18.8.2008, the complaint filed by the petitioner was dismissed in default for want of prosecution. The complaint Annexure P.1 filed by the respondent was fixed for 29.1.2009 for arguments after recording the preliminary evidence before summoning. On that day, the learned Chief Judicial Magistrate deemed it expedient to get the matter further investigated by the police and, therefore, referred the matter to SHO Police Station, Panjokhra under Section 202 of Cr.P.C for report. After the receipt of the report from the police officer, the learned Chief Judicial Magistrate, Ambala summoned the present petitioner vide order dated 25.4.2009 under Section 420 read with Section 120-B of IPC. Thus, Annexures P.1 to P.3 are liable to be quashed on the grounds as embodied in this petition. In reply filed by the respondent, it has been averred that the present petition deserves to be dismissed inasmuch as after issuance of the summoning order, almost entire prosecution evidence has been recorded and only the cross-examination of the answering respondent remains to be recorded. The case is fixed for 2.9.2009 before the learned trial Magistrate for the said purpose. Since the trial is virtually coming to an end, as such, the petition deserves dismissal on this score alone. It is well settled that a summoning order is a revisable order. The petitioner has straightway filed the present petition there-against without availing the remedy of revision. The quashing of the complaint Annexure P.1 is not maintainable. The complaint was admittedly instituted in the year 2000 and the petitioner had Criminal Misc. No. M-12926 of 2009 -4- knowledge of the same. So much so, the petitioner even filed an application No.10 of 31.5.2002 in the Court of learned Sessions Judge, Ambala seeking hearing of both the complaints by the same Court. The petitioner was thus aware of the complaint instituted by the answering respondent and did not challenge the complaint rather chose the option of getting the same heard and decided on merits by the same Court. Having so opted and having allowed the proceedings in the complaint to continue, it is not open to the petitioner to challenge the same very complaint nine years after institution of the same and after the complaint has merged into the summoning order and thereby the petitioner is liable to face trial. The petitioner has been summoned to stand trial after recording of preliminary evidence and also getting an investigation made under Section 202 of Cr.P.C in addition to the preliminary investigation. Though prima-facie commission of offence by the petitioner was spelt out from the preliminary evidence recorded by the Magistrate itself, however, with a view to be doubly sure, the learned Chief Judicial Magistrate further appears to have got the investigation made even under Section 202 of Cr.P.C. The report under the said Section based on the investigation conducted by the police, further fortify the prima-facie commission of offence by the petitioner. It is after the appreciation of the said evidence and report, which clearly establishes the complicity of the petitioner for having committed offences that the petitioner has been summoned to stand trial along with his co-accused. The present petition has been filed by raising the ground of defence which may be available to the petitioner at the time of trial. It is well settled that the grounds of defence can only be Criminal Misc. No. M-12926 of 2009 -5- appreciated at the time of trial and cannot be made ground for invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C. On 18.8.2008, since no one had appeared on behalf of the petitioner, nor the petitioner appeared in person before the Court for the entire day, despite the case being called several times, as such, the said complaint was dismissed in view of the mandate of Section 256 of Cr.P.C. This petition has been filed under the misconception that the matter could not be referred to the police for investigation under Section 202 of Cr.P.C. In the instant case, earlier the preliminary evidence was recorded under Section 200 of Cr.P.C and after recording the same, the learned Chief Judicial Magistrate decided to postpone the issuance of the process to get the matter investigated by the police instead of choosing to enquire himself in view of the mandate of Section 202 of Cr.P.C. The Magistrate never inclined himself under the said Section as is sought to be projected. The order Annexure P.2 referring the matter to the police under Section 202 of Cr.P.C cannot in any manner be said to be illegal and secondly, the said order was never challenged and had become final. It is well settled that any person can set criminal law in motion. Be that as it may, the answering respondent being an Amritdhari Sikh and follower of Sikhism and being interested in preservation of Sikh institutions, has every locus standi to question the illegal action of the petitioner for having indulged in cheating, forgery and misappropriation of the funds of the Society, which has been established with the object of preaching Sikh religion and for the welfare of followers of Sikhism. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Criminal Misc. No. M-12926 of 2009 -6- Learned counsel for the petitioner has strenuously urged that from the language of Section 202 of Cr.P.C., it is clear that the learned Court has to choose one of the two alternatives, i.e., either to investigate the whole inquiry himself or to direct investigation by the police under the said Section. Where a Magistrate chooses to enquire into the case himself, he cannot direct investigation by the police. In the instant case, the learned Chief Judicial Magistrate has adopted both the courses which is not warranted by the provisions of the said Section. The learned counsel for the respondent has reiterated the averments as enshrined in the reply. I have well considered the rival contentions. There is no gainsaying the fact that after recording the preliminary evidence, the learned Chief Judicial Magistrate had sought the report from the police by postponing issuance of the process. To me, it appears that this report was sought to be doubly sure, that the offence is made out. In the course of arguments, the learned counsel for the petitioner could not point out as to what sort of prejudice has been occasioned to the petitioner by seeking report from the police. Such report further fortified prima-facie the commission of the offence by the petitioner. A careful reading of Section 202 of Cr.P.C would reveal that the legislature has not imposed any bar upon the Magistrate to seek police report after recording preliminary evidence. It cannot be ascribed to the Magistrate that by recording preliminary evidence, he had taken cognizance of the offence. He was yet to apply mind to the evidence recorded at the preliminary stage. Thus in my view, no prejudice has been caused to the petitioner by seeking the police Criminal Misc. No. M-12926 of 2009 -7- report after recording preliminary evidence by the learned Magistrate. It has been further argued that the learned Chief Judicial Magistrate while summoning the petitioner has not noticed the order of the learned Sessions Judge dated 12.8.2002 where it is clearly mentioned that both the complaints, i.e., Annexures P.1 and P.4 having arisen out of the same incident, were to be decided together. The learned Chief Judicial Magistrate illegally dismissed the complaint of the petitioner in default on 18.8.2008 and illegally passed the summoning order in contravention of the aforesaid order rendered by the learned Sessions Judge. This contention is unsustainable for the reason that if the complaint of the petitioner was dismissed in default, he could have availed the further legal remedy. As is borne out from the record since 18.8.2008, he did not take any steps to seek any legal remedy. It implies that he was dissatisfied with the dismissal of his complaint in default. It has been further pressed into service that the complainant/ respondent has no locus standi to file the complaint Annexure P.1 as he is neither a member of the Society, nor of the Executive Committee of the governing body of the Society. I have well considered this submission. It is an accepted rule of law that any person can set criminal law in motion. The respondent being an Amritdhari Gursikh and follower of Sikhism and being interested in the preservation of Sikh institutions has every locus standi to question the illegal action of the petitioner. Thus, this contention is also unsustainable. The next argument raised on behalf of the petitioner is that the complaint Annexure P.1 has been filed at a belated stage. The cheque Criminal Misc. No. M-12926 of 2009 -8- which is the basis of the complaint had been issued on 7.7.1996 and the present complaint is being filed on 17.7.2000, i.e., after a period of four years. This argument is hard to swallow. Admittedly, almost entire prosecution evidence has been recorded by the learned trial Court and only the cross-examination of the present respondent remains to be recorded. Thus, indeed the trial is at its fag end. Such an objection can be raised before the learned trial Court. It is further maintained that the respondent had attacked the driver of the petitioner and the case was registered against him vide FIR No.80 dated 28.5.1993 and he was convicted and sentenced for two years with a fine of Rs.500/- by the Judicial Magistrate, Ambala vide order dated 4.4.2000. Thereafter, the present complaint was filed against the petitioner. This contention also merits rejection. This ground of defence can be taken before the learned trial Court. It is well settled that such grounds can only be appreciated at the time of trial and cannot be made a ground for invoking the inherent jurisdiction of this Court as ruled in re: Union of India v. B.R. Bajaj, 1994(1) Recent Criminal Reports (Criminal) 591. It has been next contended that admittedly the cheque was issued by the Society to Baba Charan Singh, who was raising the construction for the institution/ society and the amount of the cheque was credited in his account. Hence, there was no question of any embezzlement and cheating. The petitioner is not the beneficiary of the amount, which was given to Baba Charan Singh for construction of the building. The allegations against the petitioner is that he had hatched a conspiracy with Baba Charan Singh and cheated the Society. It is pertinent to mention here Criminal Misc. No. M-12926 of 2009 -9- that no such averments are made in the complaint, nor Baba Charan Singh has been arrayed as a party. It appears as if this complaint has been filed in conspiracy with Baba Charan Singh to cause damage to the petitioner. Again, I am unable to persuade to agree with this submission for the reason that such plea of defence can be taken up before the learned trial Court. A glance through the complaint Annexure P.1 would reveal that the allegations contained therein prima-facie discloses the commission of offence. The Apex Court in re: Sanapareddy Maheedhar v. State of Andhra Pradesh, 2008(1) Law Herald (SC) 101, has held as under:- “That the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/ or prosecution except when it is convinced beyond any manner of doubt that the FIR does not disclose commission of any offence or that the allegations contained in the FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the court. The High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. If the allegations contained in the FIR or complaint discloses commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any Criminal Misc. No. M-12926 of 2009 -10- fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant.” As a sequel of the above discussion, this petition is dismissed. September 05, 2009 ( HARBANS LAL ) renu JUDGE