Patna High Court
Raj Narain Verma vs Rakesh Kumar Singh on 19 January, 2000
Equivalent citations: 2000CRILJ1922
ORDER Indu Prabha Singh, J.
1. This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is directed against the order dated 28-2-1996 passed by the Judicial Magistrate in case No. 753(C)/1995 dismissing the complaint petition filed by the present petitioner under Section 208 of the Code.
2. From the prosecution case it appears that in response to an advertisement published in local dailies the petitioner booked a Flat (No. 505) measuring 1026 sq.ft. in a multi storeyed complex known as Shashi Place, R.K. Avenue (Raod) Patna by making an initial payment of Rs. 1,00,000/- to the opposite party who is the Managing Director of Arpana Housing and Construction (P) Ltd. The multi storeyed complex known as Shashi Place was being constructed by Arpana Housing and Construction (P) Ltd. Subsequently a shop was also booked by the present petitioner in Shashi Place. However, the opposite party very inteligently prepared a document of this transaction which was found to be false, illegal and with intention to commit forgery for the purpose of cheating. The further case of the present petitioner is that the opposite party tampered with the area of plot No. 505 and raise it to 1086 sq.ft. without consulting the petitioner or his wife. This act of the opposite party was illegal and amounted to cheating, forgery and breach of trust. The opposite party had undertaken to handover the possession of this Flat before December, 1992 which was, however, not done. The petitioner send a legal notice to the opposite party in reply to which the opposite party took a stand which amounted to cheating and breach of trust for which he was liable to be punished under criminal law. For the purpose he also tampered with the agreement executed by the parties for this Flat.
3. The petitioner filed a complaint petition in the court of the Chief Judicial Magistrate on 21-9-1994 under Sections 420, 406, 418, 426, 464, 465 468 and 120B of the Indian Penal Code. The matter was referred to the police for investigation in which final form was submitted on 11-8-1995. The petitioner filed a protest petition against this final form which was referred to a Judicial Magistrate, 1st Class under Section 192 of the Code by the learned Chief Judicial Magistrate. The Judicial Magistrate examined the present petitioner on solemn affirmation on his protest petition. He also examined two witnesses in support of the allegations made in the complaint petition. The learned Judicial Magistrate, 1st Class, Shri Jagarnath Rai dismissed the complaint petition under Section 203 of the Code by the impugned order.
4. The petitioner has contended that the learned Judicial Magistrate has made no attempt to appreciate or discuss the oral evidence on record and also the documentary evidence filed by the petitioner. The impugned order is completely perverse. On these grounds it has been contended that the impugned order to be set aside and the court below be directed to issue summons to the opposite party to face the trial for the aforesaid offences.
5. A counter affidavit has been filed on behalf of the opposite party in which it has been stated that the complainant-petitioner has indulged in suppression veri and suggestio falsi. The complainant (petitioner) and his wife had booked two residential Flats and two shops and had paid only Rs. 1,00,000/- as the part of the earnest money. They were required to pay 20% of the consideration money which they have not done. They have defaulted in paying the intalments on due dates. On these grounds amongst others it has been contended that there is no merit in this revision petition which is liable to be dismissed.
6. The order sheet of complaint case No. 753(C) of 1995 is on the record. The order sheet dated 11-8-1995 shows that the police had submitted a final form against the case of the present petitioner and a protest petition against the same was filed. The order sheet of the learned Chief Judicial Magistrate dated 28-8-1995 shows that he transferred the case to the learned Judicial Magistrate under Section 192 of the Code for its enquiry and disposal. This is how the record of this case was received by the learned Judicial Magistrate, Shri Jagarnath Rai. The record further shows that two witnesses on behalf of the present petitioner were examined and the statement of the petitioner was also taken on solemn affirmation. However, in spite of this the learned Judicial Magistrate passed impugned order dismissing the complaint petition presumably under Section 203 of the Code without discussing or even making any mention of the evidence on record and in the impugned order the learned Judicial Magistrate has simply stated that he had perused the complaint petition, statement of the complaintant on solemn affirmation as also the evidence of the witneses examined by the complainant. He also mentioned the documents filed by the complainant. It is, however, surprising to note that he has not at all discussed the statement of the witnesses as also the documents filed on behalf of the complainant. On the other hand, he has hevily relied on Clause 9 of the agreement according to which unless the instalment for the purchase of the Flat is not paid in time the advance amount already deposited shall be forfeited. He has gone to the extent of holding that the allegation that the opposite party had committed forgery by making statements with respect to the instalments to be paid does not appear to be correct. He, accordingly, dismissed the complaint petition.
7. This takes us to the consideration of the law on the subject. The learned Chief Judicial Magistrate has transferred the case to the court of Judicial Magistrate under Section 192(1) of the Code. Section 192(1) of the Code runs as follows :-
192. Making over of cases to Magistrates :
(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.
From this provision of law it would appear that before transferring this case to the learned Judicial Magistrate the learned Chief Judicial Magistrate as required under Section 192(1) of the Code has already taken cognizance of the offence after which only he could have transferred the case for inquiry and trial to the learned Judicial Magistrate. When the matter was placed before the learned Judicial magistrate he followed the procedure prescribed under Chapter XV and he examined the complainant on his protest petition under Section 200 of the Code. It further appears that he held an enquiry into the case himself as provided for under Section 202 of the Code and in this process he had examined two witnesses on behalf of the comlainant whose evidence was recorded on oath as required under Section 202(2) of the Code. Thereafter the impugned order was passed under Section 203 of the Code. This section runs as follows :-
203. Dismissal of complaint :- If, after considering the statements on oath (if any) of the complainant and of the witneses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so dong.
8. From a perusal of this Section it becomes clear that before passing the order under it the Magistrate is obliged under law to take into consideration (i) the statement of the complainant on oath and (ii) the statements of the witnesses made before him and (iii) the result of the enquiry held under Section 202 of the Code. Before passing of the order of dismissal under Section 203 of the Code the Magistrate concerned has to take into consideration the aforesaid and only after that he could dismiss the complaint petition if he was of the opinion that there was no sufficient ground for proceeding.
9. In the present case it, however, appears that the learned Judicial Magistrate had examined two witnesses, namely, Namita Verma, the wife of the present petitioner and Binay Gopal, his Sala. He had also examined the complainant on solemn affirmation. From the operative portion of the impugned order dated 28-2-1996 it appears that he has mentioned about the statement on solemn affirmation made by present petitioner as also the evidence of the two witnesses examined on his behalf. He has also stated that he had examined the Annexures produced by the present petitioner. It is, however, very surprising to note that he has not discussed the statement of the complainant on solemn affirmation, the evidence of his witness as also the documents produced on his behalf. Not a word has been stated about these materials produced before him and the reasons why he did not accept the same. As pointed out above Section 203 of the Code clearly provides that even after the perusal of the aforesaid if the Magistrate is of the opinion that there is no sufficient ground for proceeding he shall dismiss the complaint petition and in every such case he shall briefly record his reasons for so doing. Here in the present case the merit of the statement of the complainant made on solemn affirmation as also the evidence of the witnesses examined before him or the result of his examination of the documents produced on behalf of the complainant have not been stated or discussed at all. It was obligatory on him to assess the value of the aforesaid materials before coming to any conclusion under Section 203 of the Code. It was only after their examination that the Magistrate could have dismissed the complaint petition for the reasons to be recorded by him if he was of the opinion that there was no sufficient ground for proceeding. He could form any such opinion only after examining the materials placed before him and only after recording the reasons for holding that there are no sufficient ground for proceeding. In the present case this has not at all been done.
10. The impugned order further shows that the learned Magistrate has completely misguided himself by Clause 9 of the agreement according to which in case of the failure in depositing different instalments in time the advance amount deposited by the purchaser will stand forfeited. He has further held that the statement of the complainant that there has been interpolation in adding fresh instalments in the agreement does not inspire confidence. Probably the learned Magistrate forgot that he is not holding the trial in the case. On the other hand, he was only concerned with finding out a prima facie case made against the opposite party. As such he has completely misdirected himself in the matter.
11. This matter had come up for consideration before a Full Bench of Patna High Court consisting of five Hon'ble Judges in the case of Gajendra Swaroop Srivastava v. Baleshwar Prasad Kesari, AIR 1988 Pat 15 (FB) : 1988 Cri LJ 129 in which it has clear been held that the order under Section 208 of the Code can be passed only on the grounds stated in this section. The issue of process under Section 204 of the Code is not shackled by the specific requirements mandated under Section 203 of the Code for dismissal. From this decision also it would become clear that the order of dismissal under Section 203 of the Code can be passed only the ground stated in this section. If, however, the learned Magistrate fails to examine the statement of the complainant on solemn affirmation, the evidence of the witnesses examined by him and the result of the enquiry held by him under Section 202 of the Code any such order cannot be lawfully passed under Section 208 of the Code. Before holding the opinon that the comlaint petition is liable to be dismissed it is mandatory for the learned Magistrate to examine the aforesaid materials. If he fails to do so any order of dismissal passed under Section 203 of the Code cannot be sustained in the eyes of law. This matter has on several occasions also come up for determination before the Hon'ble Supreme Court. The true scope of Section 202 of the Code was examined by the Hon'ble Supreme Court on several occasions. In this connection reference may be made to the cases of Vadilal v. Dattatraya, AIR 1960 SC 1113 : 1960 Cri LJ 1499, Pramatha Nath v. Saroj, AIR 1962 SC 876 : 1962 (1) Cri LJ 770 and Chandra Deo v. Prakash Chandra, AIR 1963 SC 1430 : 1963 (2) Cri LJ 397. In the case of Chandradeo (supra) it has been clearly held that if the Magistrate dismissed a complaint without giving reasons as required by Section 203, the error makes the order a nullity and goes to the root of the matter. It has further been held in this case that the accused does not come into picture at all till the process is issued and whatever the accused has to say in defence can be examined only during trial. Also, for finding out whether there are sufficient grounds for proceeding or not the Magistrate has to consider the evidence recorded under Section 202 of the Code but he is not entitled to look into or rely on any extraneous matter. In the case of Pramatha (supra) it has been held that the Magistrate before passing the order under Section 203 must apply his mind to the matters specified in this section. Similarly in the case of Nagawwa v. Veeranna, AIR 1976 SC 1947 : 1976 Cri LJ 1533 it has been held that the scope of an inquiry under Section 202 of the Code is very limited only to find out whether a prima facie case for the issue of process has been made out or not without at all averting to the defence that the accused may have given in any inquiry under this section the accused has got, no locus standi and he cannot be heard.
12. From the aforesaid it would become clear that the impugned order of dismissal of the complaint could not have been passed without examing the materials mentioned in Section 203. Also the learned Magistrate committed a grave error in taking into account Clause 9 of the agreement to which he need not have referred to. Applying the same yardsticks to the present case it would become clear that when there is statement on solemn affirmation as also the evidence of the witnesses and documents produced before the Court it is necessary to examied them properly before holding any opinion that the complaint petition has to be dismissed.
13. From the detailed discussions made above it becomes clear that the impugned order dismissing the complaint petition is fit to be set aside. The order under Section 203 of the Code dismissing the complaint petition is set aside and the case is restored to the file. The Chief Judicial Magistrate concerned is directed under Section 398 of the Code to hold further enquiry into the case either by himself or by any of the Magistrate subordinate to him. In doing so the Chief Judicial Magistrate or Judicial Magistrate must take into consideration the statement of the complaint made on solemn affirmation, the evidence of the witnesses already examined and the documents filed by the complainant under Section 202 of the Code. It may be pointed out here that at this stage it is not for them to find out whether the case will end in the conviction or not. All that they are required to do is to find out whether on the basis of the aforesaid materials any prima facie case against the opposite party is made out or not and to summon the opposite party on their basis.
18. With the aforesaid observation this revision petition is allowed in the manner indicated above.