CRM No. M-30227 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-30227 of 2009 Date of Decision : December 20, 2011 Karl Joseph Puetz and another .... PETITIONERS Vs. Ashwani Ranjan and another ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. K.S.Nalwa, Advocate, for the petitioners. Mr. Raja Sharma, AAG, Haryana, for respondent No. 2. Mr. Vineet Sharma, Advocate, for respondent No. 1. * * * AUGUSTINE GEORGE MASIH, J. Petitioners, namely, Karl Joseph Puetz and Rashma Puetz, who are husband and wife and directors of M/s Enexco Teknologies India Ltd. (hereinafter referred to as 'the Company'), have approached this Court praying for quashing of the complaint (Protest Petition) dated 22.04.2002 (Annexure P-23) preferred by Ashwani Ranjan-respondent No. 1 and the summoning order dated 15.09.2009 (Annexure P-30) passed by the Judicial Magistrate Ist Class, Gurgaon, whereby the petitioners have been CRM No. M-30227 of 2009 2 summoned under Sections 420, 347, 506 read with Section 34 of the Indian Penal Code and all subsequent proceedings arising therefrom. Briefly, the facts, as asserted by the petitioners, are that petitioner No. 1 started a venture by the name of Enexco Consultants Pvt. Ltd. with 100% share holding. He also promoted another company called Enexco Engineering Ltd. with 50% share holding. In the year 1994, the company was converted into Enexco Teknologies Ltd. for manufacture of material handling and other equipments to be used in the Cement Industries. This company is registered under the Companies Act, 1956. Respondent No. 1-complainant joined Enexco Consultants Pvt. Ltd. on 31.01.1995 as General Manager. It is alleged that the complainant diverted some orders to the competitors of the Company and, therefore, was working against the interest of the Company. He divulged company trade secrets parted with drawings, valuable information to its competitors and thereafter, started absenting himself from duties without intimation or prior sanction w.e.f. 24.11.1995. He was intimated vide communication dated 02.12.1995 and his explanation was sought. On the same very day, a resignation letter dated 24.11.1995 was received by the Company from the complainant and on 06.12.1995, the resignation of the complainant was accepted. However, this was subject to his handing over the pending papers and other official articles, which were in his possession and to take clearance certificate from the Company. It was observed that a sum of Rs. 2,26,459.23P was outstanding against the complainant. He was called upon to deposit the said amount. Complainant sought the details and when the complainant did not clear the outstanding amount, civil suit was filed in the High Court at Delhi for recovery, damages and other dues. CRM No. M-30227 of 2009 3 Complainant apologized to petitioner No. 1 for his previous conduct and he was again re-inducted in service and appointed as Senior Vice President (Corporate) in the Company. The suit was withdrawn by petitioner No. 1. As per the terms of the appointment, it was categorically stated that he will not utilize or divulge to any person/persons any of the trade secrets or affairs which came to his notice during employment. It was further mentioned that the complainant would not associate himself with any business of the Company or the person without any previous written permission of the Company. This appointment letter is dated 21.08.1997. In violation of these terms of appointment, complainant started a parallel company under the name and style of Con-Weigh Systems and started soliciting work from the existing customers of the Company. The Company lodged a complaint dated 16.08.1999 with Police Station Malviya Nagar against the complainant, which was signed by petitioner No. 2, wherein it was stated that he had divulged the trade secrets and is transferring documents, drawing designs etc. to the rival companies causing damage to the company. FIR No. 528 dated 16.08.1999 was registered at Police Station Malviya Nagar under Section 406 of the Indian Penal Code against the complainant. As a counter-blast to this, complainant filed a complaint on the same date in Police Station Kirti Nagar, New Delhi, wherein he alleged that he had submitted his resignation in January, 1999, which petitioner No. 1 refused to accept and instead started harassing him. Petitioner No. 1 called him over to his residence at MA.1/4/3B, Garden Estate, Gurgaon on the pretext of holding discussions and when he reached his residence, four armed goons overpowered him and placed pistol on his temple, threatened CRM No. M-30227 of 2009 4 and forced him to sign on blank papers. It was also alleged that he was taken to his house in a car at 5 P.M. and his almirahs were ransacked and papers and documents were taken away therefrom. When no FIR was registered on this complaint, on the same facts the complainant filed another complaint in Police Station, DLF, Gurgaon, on the basis of which, FIR No. 244 dated 17.08.1999 was registered against petitioner No. 1 under Sections 420, 347, 506 and 34 of the Indian Penal Code. Investigation was initiated in this case wherein a supplementary statement was given by the complainant, in which he named petitioner No. 2 as also being present with petitioner No. 1 to help him in obtaining signatures and while lodging the complaint on 17.08.1999, he forgot to mention the fact about her in fear and hurry. Petitioner No. 2 preferred an anticipatory bail application, which was dismissed by the Additional Sessions Judge, Gurgaon, vide order dated 24.08.1999. Thereafter, she approached the High Court seeking anticipatory bail and on the day when the case was listed i.e. on 10.09.1999, a statement was given by the counsel for the State that the cancellation report is being filed and, therefore, the Court confirmed the anticipatory bail on the statement of the counsel for the State. Investigation of the case was conducted by the Deputy Superintendent of Police (Headquarters). On the basis of the said investigation, a cancellation report was prepared on 07.09.1999. But before the same could be submitted in Court, complainant met the Inspector General of Police who forwarded the investigation to be conducted by the Deputy superintendent of Police, CID, Crime Branch, Madhuban, Karnal. On further investigation, the conclusion reached by the CRM No. M-30227 of 2009 5 Deputy Superintendent of Police, CID, Crime Branch, Madhuban, Karnal was the same and he submitted his report on 29.06.2000. On this basis, a cancellation report was prepared and submitted to the competent Court. Complainant submitted his objections dated 22.04.2002 (Annexure P-23) to the cancellation report by the police in Court which came up for consideration before the Judicial Magistrate Ist Class, Gurgaon on 06.11.2004 wherein the Magistrate on hearing the counsel for the parties and going through the records of the case, came to the conclusion that the points, which have been raised by the counsel for the complainant, created a doubt regarding the bona-fides of the cancellation report submitted by the police, however, in the interest of justice, the accused persons were not summoned straightway to face trial and the objections filed by the complainant to the cancellation report were treated as private complaint of the complainant and the complainant was directed to produce the preliminary evidence in support of his allegations. Complainant produced five witnesses and on consideration of the preliminary evidence led by the complainant, petitioners were summoned to face trial under Sections 420, 347, 506 read with Section 34 of the Indian Penal Code vide order dated 15.09.2009 (Annexure P-30). It is thereafter that the petitioners have now approached this Court by filing the present petition for quashing the protest petition as also the summoning order. Counsel for the petitioners contends that the Judicial Magistrate Ist Class, Gurgaon has failed to take into consideration the evidence collected by the police during its investigation and has not considered the two reports submitted by two different Deputy Superintendents of Police which form part of the cancellation report. Non- CRM No. M-30227 of 2009 6 taking of the same into consideration while summoning the petitioners is in violation of the judgment of the Supreme Court passed in the case of Chittaranjan Mirdha vs. Dulal Ghosh, JT 2009 (13) SC 198. His further contention is that petitioner No. 2 is not even mentioned in the first complaint filed by the complainant and she has been named in a supplementary statement given by him a day thereafter, which shows that the allegations made in the complaint are totally false. The present FIR is a counter-blast to the FIR got registered by petitioner No. 1 against the complainant i.e. FIR No. 528 dated 16.08.1999 which was registered at Police Station Malviya Nagar. His contention is that the Magistrate had power to differ with the report submitted by the Investigating Officer and could have independently applied his mind to the facts emerging from the investigation for the purpose of taking cognizance as per Section 190 (1) (b) of the Code of Criminal Procedure (hereinafter referred to as 'Cr. P.C.') and cannot follow the procedure laid down in Section 200 Cr. P.C. by allowing the complainant to lead fresh evidence for the purpose of issuance of summons. He, on this basis, contends that the impugned protest petition and the summoning order deserve to be quashed. On the other hand, counsel for the complainant-respondent No. 1 also places reliance upon the observations made by the Supreme Court in the case of Chittaranjan Mirdha (supra) to contend that the Supreme Court, while earlier elaborating upon the powers of the Magistrate under Section 190 Cr. P.C., has clarified that the Magistrate is not precluded to act under Sections 200 and 202 Cr.P.C. Reliance has been placed by him on the judgment of the Supreme Court in M/s India Carat CRM No. M-30227 of 2009 7 Pvt. Ltd. vs. State of Karnataka, 1989 (1) RCR (Criminal) 395. Reliance has also been placed upon a judgment of Allahabad High Court in the case of Yogendra Singh vs. State of U.P. and others, 2005 (3) RCR (Criminal) 89. His further contention is that there are disputed questions of fact which cannot be gone into by this Court while exercising its powers under Section 482 Cr.P.C.. The allegations and counter allegations have to be tested before the trial Court and, therefore, it cannot be concluded at this stage as to whose assertions are correct. The Magistrate has exercised his powers in accordance with law and, therefore, the petition deserves to be dismissed. I have considered the submissions made by the counsel for the parties and with their assistance, have gone through the records of the case. The contention of the counsel for the petitioners that the present FIR is a counter-blast to the FIR got registered against the complainant by the petitioners cannot, at this stage, be made the basis for quashing of the summoning order as these are not co-related with each other. There are serious allegations which have been made against the petitioners which cannot be brushed aside at this stage when ample evidence has been brought on record by the complainant before the Judicial Magistrate Ist Class by way of preliminary evidence which would prima-facie justify the summoning of the petitioners for facing trial. Further, the assertions made in the petition have been disputed by the complainant- respondent No. 1 in his reply, which would require evidence to be led by the parties, which, therefore, cannot be resolved in these proceedings. The allegations and counter-allegations have been made which the Court, CRM No. M-30227 of 2009 8 in exercise of its jurisdiction under Section 482 Cr. P.C., would not delve into and decide as it would require recording of independent evidence. As regards the assertion of the counsel for the petitioners that the trial Court could not proceed under Sections 200 and 202 Cr. P.C. without accepting the cancellation report and that even if the said procedure is resorted to, the Magistrate cannot summon the petitioners without taking into consideration the entire evidence which has been collected by the police during the investigation, cannot be accepted in the light of the judgment of the Supreme Court in the case of M/s India Carat Pvt. Ltd. (supra), wherein the Hon'ble Supreme Court has held that there is no bar and it was in fact open to the Magistrate to act under Sections 200 or 202 Cr. P.C. to summon the accused which proposition has been accepted even in the judgment relied upon by the counsel for the petitioners i.e. Chittaranjan Mirdha's case (supra), which reads as follows:- “14. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either(1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate, he has again the option of CRM No. M-30227 of 2009 9 adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See M/s. India Sarat Pvt. Ltd. v. State of Karnataka CRM No. M-30227 of 2009 10 and another (AIR 1989 SC 885)]. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh's case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard (Emphasis supplied is mine). This principle has again been followed by the Supreme Court in the case of Umashankar vs. State of Bihar and another, 2010 (4) RCR (Criminal) 363. In the light of the above law laid down by Hon'ble the Supreme Court, the present petition cannot survive and therefore, deserves to be dismissed. Ordered accordingly. (AUGUSTINE GEORGE MASIH ) December 20, 2011 JUDGE pj