1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NOS. 45, 46, 47 AND 48 OF 2007 Goa Antibiotics & Pharmaceuticals Ltd. (A Govt. of Goa Undertaking) Tuem, Pernem, Goa. Through its Attorney Shri V. R. Kerikar ... Applicant versus 1. Mr. R. K. Chawla Director, Goa Foods & Pharma(P) Ltd., 109 Kundaim Industrial Estate, Kundaim, Ponda, Goa. 2. Mrs. Neena Chawla Director, Goa Foods & Pharma(P) Ltd., 109 Kundaim Industrial Estate, Kundaim, Ponda, Goa. 3. State of Goa, Through Office of Advocate General, Government of Goa, Panaji, Goa. ... Respondents Mr. J. P. D'Souza, Advocate for the Applicant. Mr. S. S. Singbal, Advocate for Respondent No. 1. 2 CORAM : N. A. BRITTO, J. DATE : 12TH AUGUST, 2008. ORAL JUDGMENT Heard Mr. J. P. D'Souza, learned Counsel on behalf of the Applicant and Mr. S. S. Singbal, learned Counsel on behalf of Respondent No.1. Other Respondents have chosen to remain absent. 2. These revisions are directed against Order dated 7-3-2007 of the learned Sessions Judge by which the revisions filed before him by the accused were allowed and the Order dated 18-2-2005 of the learned Magistrate was set aside and as a result the respondent nos.1 and 2/accused were discharged under Section 420 r/w 34 I.P.C. 3. As the facts giving rise to these revisions are common, by consent, they are being disposed of by this common Judgment. 4. Some more facts are required to be stated to dispose of these revision applications. The applicant herein is a Company who filed a complaint against the accused under Section 420 r/w 34 I .P.C. It appears that process issued initially was quashed by this Court by Order dated 30-1-2003 in Criminal Miscellaneous Application No. 106/2002. Thereafter, the Complainant's Manager was examined afresh and so also other witnesses and the learned J.M.F.C. by 3 Order dated 17-11-2003 was pleased to issue process against the accused under Section 420 r/w 34 I.P.C. 5. After the accused appeared before the learned trial Court, the accused filed an application, on or about 9-7-2004, for recall of process issued against the accused and the said application came to be rejected by the learned J.M.F.C. by Order dated 26-11-2004. In rejecting the said application for recall of process the learned J.M.F.C. relied upon the case of Adalat Prasad v. Rupal Zindal((2004) 22 ILD 425). Admittedly, till date, the Orders dated 17-11-2003 as well as 26-11-2004 have remained in force, the same having not been challenged by the accused either in revision or for that matter under Section 482 of the Code of Criminal Procedure, 1973. The impugned Order makes no reference to them. 6. Thereafter, the accused filed an application dated 3-2-2005, under Section 245(2) of the Code(Code of Criminal Procedure, 1973) and it appears that in the said application certain documents were referred to particularly the complaints filed under Section 138 of the Negotiable Instruments Act, 1881 and the Agreement dated 19-3-1997 and it was contended that in the said complaints there were no allegations of any corrupt practices on the part of the accused and failure to keep the promise under the said agreement did not come within the ambit of Section 420 I.P.C. It was further contended that the application was 4 maintainable and the Court was called upon to look into the verification and the documents furnished by the complainant and discharge the accused. 7. The said application came to be rejected by the learned J.M.F.C., Pernem by his Order dated 18-2-2005. In the said Order, the learned J.M.F.C., inter alia, observed that on 27-9-2004, the accused had moved an application to recall process issued under Section 420 r/w 34 I.P.C. and after hearing both the parties he had dismissed the said application. The learned J.M.F.C. also noted that the accused had not faced any inquiry and further observed that the accused had urged the very grounds which were urged by them at the time of filing of application for recall of process. Referring to sub-section(1) of Section 245 of the Code, the learned J.M.F.C. noted that there was no evidence led in the inquiry before framing of charge and the documents produced on behalf of the accused were not sufficient to discharge the accused under sub-section(2) of Section 245 of the Code and that the accused would get an opportunity to argue their case before the framing of charge and as the case was fixed for inquiry before the framing of charge, the learned J.M.F.C. proceeded to dismiss the said application for discharge, filed under Section 245(2) of the said Code. 8. The accused having preferred revision applications to the Court of Sessions, against the said Order dated 18-2-2005, the same came to be set aside. A careful perusal of the impugned Order shows that the learned Additional Sessions Judge was considering the correctness of the impugned Order dated 18-2-2005 5 and nothing more. Nevertheless, the learned Additional Sessions Judge in allowing the revisions, observed that the statements on oath of the complainants' witnesses read with the documents produced did not make out any sufficient grounds for proceeding against the accused under Section 420 r/w 34 I.P.C. when there was no challenge before him to the Orders dated 17-11-2003 or 26-11-2004. The learned Additional Sessions Judge then proceeded to set aside the impugned Order dated 18-2-2005 and discharge the accused under Section 420 r/w 34 I.P.C. In doing, so, the learned Additional Sessions Judge extensively relied upon the case of G. Sagar and another v. State of U.P.(2000 AIR SCW 296) and concluded that the facts of the present case were similar to that case. The facts might have been similar only in case the accused were allowed to produce the documents referred to by them in their said application dated 3-2-2005. 9. Learned Counsel on behalf of the applicant/complainant contends that no revision was maintainable against the Order dated 18-2-2005 of the learned Magistrate. Learned Counsel further submits that even if revision was maintainable then the learned Sessions Judge in his revisional jurisdiction could not have reassessed the evidence as assessed by the learned Magistrate and based on which he had issued process against the accused. 10. On the other hand, learned Counsel on behalf of respondent no.1/accused has referred to the case of Cricket Association of Bengal and others v. State of West Bengal and others(1971(3) SCC 239) and has 6 contended that the powers under Section 245(2) could have been exercised by the learned J.M.F.C. notwithstanding that earlier the same Magistrate had issued process against the accused. Learned Counsel has further submitted, relying on the case of Shiv Kumar Daga v. State of Assam and others(1990 Cri. L. J. 358) that power under Section 245 could be exercised at any stage even after entertaining the complaint. In this case, the learned Single Judge has held, referring to Section 294 of the Code that the learned Magistrate ought to have considered the documents before giving a decision on the application, particularly because the case related to the breach of contract and the petitioners' assertion was that it was a dispute between the parties which was of a civil nature. The learned Judge further observed that considering the nature of the case in the complaint and the applicant's version, the said documents filed by the complainant himself were relevant evidence which requires to be considered for proper decision of the applicant's application under Section 245(2) of the Code. Learned Counsel on behalf of respondent no.1 has also submitted that the order issuing process against the accused was also challenged by the accused before the learned Sessions Judge but I must hasten to state, as already stated, that a perusal of the impugned Order dated 7-3-2007 shows that what was under challenge before the learned Additional Sessions Judge was only the Order dated 18-2-2005, and no other order, by which the application filed on behalf of the accused under Section 245 of the Code was dismissed. Therefore, it may be reiterated at the cost of repetition that the orders issuing process dated 17-11-2003 and declining to recall the process dated 26-11-2004 are in full force and effect. 7 11. Section 245 of the Code deals with the discharge of the accused. It reads as follows:- “(1) If, upon taking all the evidence referred to in section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.” 12 There cannot be two opinions, that a Magistrate has power to discharge an accused under Section 245(2) as explained by the Apex Court in the case of Cricket Association of Bengal and others v. State of West Bengal and others(supra). The Apex Court has clearly and unequivocally stated that sub-section(2) of Section 245 gives ample jurisdiction to the Magistrate to discharge an accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case. Sub-Section(1), under those circumstances will not operate as a bar to the exercise of jurisdiction by the Magistrate under sub-section(2). The Court further noted that it is under sub-section(2) of Section 245 that the Magistrate had discharged the accused. He had given good reasons in the order for discharging the accused. 8 13. The controversy can be looked at from another angle. The prayer of the accused in the application dated 3-2-2005 was to the Court to have a re-look in the verification statement and the documents furnished by the complainant as evidence under Section 244 of the Code. As on today, we have two decisions of the Apex Court which hold the field. The first is regards the recall of process in the case of Adalat Prasad v. Rupal Zindal(supra) and the other is the case of State of Orissa v. Dependra Nath Padhi(2005 SCC(CRI) 415). The statements recorded prior to issue of process could certainly not be considered as evidence under Section 244 of the Code. Re-examining the case of the complainant on the very basis of statements relied upon for issuing the process would amount to reviewing the order which is now forbidden by law laid down in Adalat Prasad v. Rupal Zindal(supra). In State of Orissa v. Dependra Nath Padhi(supra) the Apex Court has clearly stated that at the time of framing of charge, or taking cognizance, the accused has no right to produce any material and no provisions in the Code grants the accused any right to file any document at the stage of framing of the charge. In my view the same principle has got to be followed at the stage of Section 245(2) as well. The same principle was followed in SMS Pharmaceuticals Ltd. v. Neeta((2005) 8 SCC 89). In the light of the said decision, no documents could be allowed to be produced or looked into, as those mentioned by the accused in their said application under Section 245(2) of the Code. The complaints filed under Section 138 of the Negotiable Instruments Act, 1881 or the agreement between the parties dated 19-3-1997 therefore could not be looked into to discharge the accused. In the absence of the said documents, being 9 produced, the learned Additional Sessions Judge was not right in observing that the case of G. Sagar Suri and another v. State of U.P. and others(2000 SCC(Cri) 513) was similar to the facts of the case at hand, which are yet to be brought on record. That was a case where all facts were on record and jurisdiction of the High Court was invoked to quash the criminal proceedings. The accused would certainly be entitled to bring the said documents on record at the stage under Section 244(1) of the Code and seek discharge. If at all power under Section 245(2) of the Code was used to discharge the accused in the case of Cricket Association of Bengal and others v. State of West Bengal and others(supra) it was at the behest of the complainant who had sought discharge of eight of the accused as they had ceased to act as members of Working Committee. 14. The learned Magistrate by brief Order dated 17-11-2003 was pleased to issue process against the accused under Section 420 r/w 34 I.P.C. That order was sought to be reviewed but that was not allowed. There was no other challenge to that Order. 15. In view of the above discussion, the revision succeeds, the impugned Order is hereby set aside and the parties are directed to appear before the learned trial Court on 29th September, 2008 at 10.00 a.m. for further proceedings into the said complaints. N. A. BRITTO, J. RD