Delhi District Court
Pawan Saraswat vs The State on 27 March, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
CR No.12/08
Pawan Saraswat
S/o Late Sh. P.N. Saraswat
R/o 785, Nai Sarak, Delhi. .....Revisionist.
Versus
1. The State
(Govt. of NCT of Delhi)
2. Hari Om Aggarwal
S/o Sh. P.C. Aggarwal
R/o 2210, Aggarwal Market,
Katra Tobacco - Tilak Bazar,
Khari Bawli, Delhi - 110006. ......Respondents
AND
CR No.13/08
Shyam Sunder
S/o Sh. Sri Kishan Dass
R/o 2707, Gali Phatteywali,
Naya Bazar, Delhi - 110006. .....Revisionist.
Versus
1. State
2. Hari Om Aggarwal
S/o Sh. P.C. Aggarwal
R/o 2210, Aggarwal Market,
Gali Hinga Beg, Tilak Bazar,
Delhi - 110006. ......Respondents
JUDGMENT
1. By this common judgment, I will decide both the above mentioned (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 1 of pages 14 revision petitions, directed against the order dated 19.08.2006 passed by Ld. MM/Delhi, whereby the petitioner namely Shyam Shankar was summoned U/s 379/120B/182/465/471 IPC and the petitioner Pawan Saraswat was summoned U/s 182/465/471/120B IPC, in a complaint case, bearing CC No.472/1A titled as Hari Om Aggarwal Vs. Pawan Saraswat etc., filed by the complainant Hari Om Aggarwal (respondent herein).
2. The fact in brief necessary for the disposal of the present revision petitions are that the accused no.2 Shyam Sunder (in complaint case) was working as Director in the firm Suhag Sari Kendra and was in the possession of documents to be used in day to day business including the cheque books but during the said period when he was in the control of the business transaction, the cheque which is the subject matter of the complaint Pawan Saraswat Vs. Hari Om Aggarwal bearing no.406252 was stolen by him and which had been shown to be allegedly issued to Pawan Kumar Saraswat with the connivance of both the persons. It was further averred that the same has been misused, though the cheque pertained to individual account and even despite the complaint made to the police, no action was taken by them and rather the complainant was made to face trial U/s 138 of N.I. Act. The complainant himself (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 2 of pages 14 appeared as PW1 and got recorded his pre summoning evidence before the Ld. Trial Court. Then he also produced one more witness in support of his complaint. After hearing the complainant, both the revisionists herein were summoned under the aforesaid provisions of law and since the revisionist Pawan Saraswat was present in the court in an another matter, titled as Pawan Saraswat Vs. Hari Om Aggarwal, he was considered as deemed served.
The revisionist Pawan Saraswat is challenging the impugned order on several grounds like the complainant's version on the face of it does not disclose the commission of alleged offence against the petitioner Pawan Saraswat. Further the statement of the complainant has been recorded without taking of the cognizance by the Ld. MM/Delhi and as such the mandatory provision of section 200 Cr. P. C has not been complied with and thus the summoning order in question is bad in the eyes of law. It is also claimed that the complainant has not filed the list of prosecution witnesses in the Ld. Trial Court and the copy of the complaint had not been delivered to the petitioner till date and in this way the mandatory provision of Section 204 (2) & (3) Cr. P. C have not been complied with. Thus, the summoning order in question is bad in the eyes of law. Further the complainant Hari Om Aggarwal, had (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 3 of pages 14 issued the cheque in question in fvaour of the petitioner to discharge the legal liability and there is acknowledgment of said liability. The cheque in question is not forged one. Further it is the allegation of the complainant that a legal notice dated 12.03.2004 pertaining to the cheque in question was got issued by the petitioner Pawan Saraswat through Sh. Deepak Tygai, Advocate but in fact the said notice was never issued on behalf of petitioner Pawan Saraswat. The complainant has concocted and given this false evidence and moreover, the complainant has not placed the above said notice on record. it is claimed that he pre summoning evidence has been recorded in a very causal manner and the very purpose of prosecution under Section 138 of N I Act shall be frustrated if the complainant's case in question against the petitioner is entertained. It is well settled that the judicial process ought not to be permitted as an instrument of oppression.
3. The aforesaid impugned order has been challenged by the petitioner Shyam Sunder on the ground that the order is based on conjunctures and surmises and is not supported with the valid and admitted principles of law. The other coaccused Pawan Saraswat has already filed a complaint case U/s 138 of N.I Act against the complainant Hari Om Aggarwal in which the court has already summoned in and he is (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 4 of pages 14 facing trial in that case. Instead of preferring any appeal/revision against the said summoning order, he has preferred the complainant case against the petitioners herein. There is not even a iota of word that the petitioner Shyam Sunder was having any access to the personal record and accounts of the respondent Hari Om or as to how the cheque in question could have come in the hands of the present petitioner. Moreover, there is no evidence on record to suggest that the cheque was stolen by the petitioner and that it was handed over by the petitioner to the another petitioner Pawan Saraswat and once this important chain is missing then the summoning order against the petitioner u/s 379 IPC is bad in law. Similarly, the complainant miserably failed to make out any case U/s 465/471 IPC thereby showing that any sort of forgery has been committed by the petitioner and thus the summoning order against the petitioner U/s 465/471 IPC is also not made out. Similarly, so far as the section 182 IPC is concerned, there is absolutely no evidence adduced by the complainant. Thus, the entire summoning order is wholly erroneous and as such the same is not sustainable in the eyes of law. Same is also not a speaking order. It is also claimed that the summoning order shows that the statement of the complainant has been recorded by the Ld. Trial Court without taking the cognizance of (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 5 of pages 14 all the mandatory provision s of Section 200 Cr. P. C which have not been complied with. Similarly, the mandatory requirement of Section 204 (2) & (3) Cr. P. C are also not complied with and as such the summoning order is bad in law. The petitioner Shaym Sunder has nothing to do with the business/monetary transaction between the petitioner Pawan Saraswat and respondent Hari Om. Ld. Trial Court has also failed to consider the fact that the complainant took more than one year in concluding his evidence and took number of adjournment on one ground or the other to conclude his presummoning evidence which creates suspicion in the mind. The order in question has been passed in hurry. The judicial process should not be used as an instrument or tool by any one to frustrate the legal purposes.
4. I have carefully heard the rival submissions of both the sides in both the petitions. I have also perused the entire material placed on record particularly the impugned order dated 19.08.2006, the contents of the petitions specially the grounds taken therein as well as the record summoned from the Trial Court.
5. According to Ld. counsel for the respondent, the petitions as filed by the petitioners contain no force therein as the petitioners have been failed to point out any material irregularity or lapse in the impugned (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 6 of pages 14 order. It is well settled that at the time of issuing process, the court is required to see only prima facie material and at that time the court can not look into the evidence in details particularly, the defence, so as to find the guilt or otherwise of the accused.
6. On the other hand according to revisionist, the impugned order is not sustainable in the eyes of law as the statement of the complainant was recorded without taking of cognizance by the Ld. Trial Court which is in violation of provision of Section 200 Cr. P. C and secondly, the mandatory requirements of sub Section 2 & 3 of Section 204 Cr.P.C have not been complied with. Further, the impugned order has been passed in haste on the basis of concocted and false evidence which were brought to frustrate the prosecution of the case filed by the revisionist Pawan Saraswat U/s 138 N.I. Act against the complainant Hari Om Aggarwal. Instead of filing the revision or the appeal against the summoning order passed in the case filed by the revisionist Pawan Saraswat, the complainant has adopted this unfair mean to achieve his illegal goal.
7. After giving due thought to the rival submissions made on behalf of both the sides in both the cases, I have come to the considered opinion that the present revision petitions as filed by the revisionists (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 7 of pages 14 contain no force therein as they have been failed to point out any illegality or material lapse on the part of Ld. Trial Court in passing the impugned order.
8. Chapter XV (Section 200 to 203 of Code of Civil Procedure) lays down the procedure to deal with complaint made by private person. If a Magistrate takes a cognizance of an offence, he must (1) examined upon oath the complainant and the witnesses present, if any, and (2) reduced its substance to writing. An examination of the witnesses present is necessary.
9. The procedure to be adopted when a complaint is lodged, as laid down in Ss.200203, are: (1).Under S.200 it is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present if any, at sufficient length to satisfy himself as to the veracity of the complainant and as to points on which he is silent, or on which there may be doubt. The object is to test whether the allegations make out a prima facie case to enable him to issue process.
(2).If he finds no prima facie reason to distrust and the facts constitute an offence under the law, if is incumbent to issue process forthwith.
(Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 8 of pages 14 (3).If he distrusts the complainant altogether or if no offence is made out, it is equally his duty to dismiss the complaint (S. 203) (4).It is only when his distrust is not sufficiently strong to warrant action upon it that it is open to him to postpone issue of process pending further inquiry under S. 202. He can then inquire himself or direct an investigation to be made by a police officer or by any private person he thinks fit.
10. In V.S. Joshi Vs. N.G. Bhatt, Chitrigi, 2006 (Crlj.) 1566 Karnataka, it was held that, "In a case, the Magistrate after taking notice of the accusations made in the complaint has proceeded to record the sworn statements of the complaint and the witnesses. It is clear that the Magistrate has taken the cognizance of the offences to proceed Under Section 200 & 204 Cr. P. C even prior to recording of the sworn statements."
11. In 2003 (1) Andh LT (Cri) AP 420 (AP), it has been held that, "There is no bar of taking cognizance after examination of the witnesses and the complainant."
(Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 9 of pages 14
12. In M. Palaniappan Vs. G. Ravichandran (2007) 1 MLJ (Crl.) 385 Madras, it has been held that, "Section 200 Cr. P. C contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any, and issue process to the accused, if prima facie case is made out."
13. In 1978 (Crlj.) 1551 titled as N.N. Ponnappa Vs. State of Karnataka, it was held that, "It is well settled that at the stage of issuing process the Magistrate is mainly concern with the allegation in the complaint or the evidence led in support of the same and he is only to be prima facie satisfy whether there are sufficient material to proceed."
14. In the case in hand, from the perusal of the trial court record particularly the orders dated 10.08.2004, 26.10.2004, 02.12.2005 and the impugned order dated 19.08.2006, it can not be said (in the light of aforesaid settled legal proposition of law) that the impugned order has been passed in haste, without applying the judicial mind and without (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 10 of pages 14 following the procedures laid down U/s 200 of Code of Civil Procedure. Although, it is true that in the order dated 10.08.2004 there is no specific mention about the taking of cognizance by the court while issuing order for bringing presummoning evidence but it does not mean that the impugned order has been passed without applying the judicial mind. Ld. Trial Court had not only recorded the statement of complainant on oath but it had also recorded the statement of CW2 Ct. Arvind Kumar (the other witness produced by the complainant). Thus there is no force in the claim of the revisionists.
15. As regard to the defect regarding non filing of the list of witnesses and non supplying of the copy of the complaint alongwith the process, as pointed out by Ld. counsel for the revisionists, I am agreed with Ld. counsel for the respondent that there is nothing in Section 204 Cr. P. C which says or indicates that if no list of prosecution witnesses is filed before process issued to the accused or the copy of the complaint is not supplied alongwith the summons, then none can be filed or supplied later on. Section 204 Cr.P.C is meant to safeguard the interest of accused persons against undue harassment at the hands of unscrupulous litigants. However, Section 204 Cr.P.C does not over ride Section 254 (1) Cr.P.C. Merely non filing of list of witnesses in (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 11 of pages 14 complaint case or non supplying of copy of complaint alongwith the process is not sufficient to quash order issuing process in absence of any prejudice caused to the accused. Here I am fortified by the judgment reported as 2006 (Cr. LJ) 3114 (Bombay) and 1995 (Cr. LJ) 352 (Madras).
In Devender Kumar Jain Vs. State 1990 (Cr.LJ) NOC 81, it was held that non compliance of Section 204 (2) did not effect the trial.
In Pramila Vs. ESI, 2002 (Cr.LJ) 2454 (Bombay), it was held that "Even if it is held that provisions of Section 204 (2) are mandatory, that by itself, does not vitiate the issue of process or the jurisdiction of the court. The court can direct that the copy of list of witnesses be furnished, if any, before the proceeding is actually commenced."
Sub Section 3 of Section 204 Cr.P.C requires that where the complaint is in writing the summons or warrant issued to the accused shall be accompanied by a copy of complaint. the object is to enable the accused to know precisely what is the charges against the accused but (Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 12 of pages 14 this provisions is also directory in nature and non compliance thereon does not vitiate the issue of process and copy of the complaint can be furnished to the accused before the proceeding actually starts. Here I am fortified with the judgments reported as 2002 (Cr.LJ)2454 and AIR 1961 Calcutta 648.
16. As regards to the claim of the revisionists that there is no evidence on record to suggest that the cheque was stolen by the petitioner Shyam Sunder and misused by the petitioner Pawan Saraswat or there is no material to show that any sought of forgery has been committed by the revisionists or the petitioner Shyam Sunder has nothing to do with the business/monetary transaction between Pawan Saraswat and Hari Om or the complaint is the counter blast of the complaint filed by Pawan Saraswat U/s 138 of N.I. Act, can not be appreciated at this stage because these question can be answered after leading of trial and at this preliminary stage, the court is required to see only prima facie case and at this stage Magistrate should not go deep into the probative value of the material or record. At this stage, the Magistrate can not consider the defence of accused. Here I am fortified by the judgment reported as 2007 (Cr.LJ) NOC 55 (Patna).
(Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 13 of pages 14
17. In view of the above, I find no material lapse or infirmity in the impugned order passed by Ld. Trial Court. As such there is no force in the revision petitions and accordingly both of them are hereby dismissed.
18. TCR (attached with the file bearing CR. No.12/08) alongwith one copy of this judgment be sent back to the Ld. Trial Court.
19. One copy each of this judgment be also placed in both the revision files bearing CR No.12/08 and CR. No.13/08 and thereafter, both the revision files be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 27.03.2009) ASJ04 (NORTH)/DELHI
(Pawan Saraswat Vs. The State etc.) & (Shyam Sunder Vs. State etc.) Page no. 14 of pages 14