Himachal Pradesh High Court
Anil Kumar And Anr. vs Ajai Butail And Anr. on 31 October, 1991
Equivalent citations: 1992CRILJ2282
ORDER V.K. Mehrotra, J.
1. I have heard Shri T.R. Chandel at some length but I am not satisfied that the present is a fit case where this Court should be persuaded to intervene in the matter in exercise of its revisional jurisdiction Under Section 397, Cr. P.C.
2. The applicants before this Court are two brothers who filed a complaint against respondents Ajai Butail and his mother Smt. Usha Butail for having committed an offence Under Section 420, IPC. In substance what they said in the complaint was that Ajai Butail as the general attorney of Smt. Usha Butail agreed to sell two residential flats occupied by tenants Smt. Leela Devi and Shri Joginder Lal Karol to the complainants on April 30, 1988 at Shimla for a sum of Rs. 90,000/-. An agreement to that effect was executed by Ajay Butail in favour of the father of the two complainants, namely, Shri Joginder Lal Karol. A sum of Rs. 5,101/- was also received by Ajai Butail as earnest money from Shri Joginder Lal Karol in the presence of S/Shri Vinay Sood and Dinesh Butail. Later, in spite of the agreement aforesaid one of the flats was sold by Ajay Butail to one Jatti Ram on August 5, 1988 for a sum of Rs. 24,500/- and the other flat was sold by him on November 17, 1988 to one Sneh Lata for a sum of Rs. 25,477/-. Both these sale deeds were got registered in Tehsil Shimla. The complaint proceeds to recite some subsequent facts on the basis whereof it was inferred by the complainants that the accused persons had caused damages and harm to the complainants in body, mind, reputation and property and had cheated them. It has also been stated in the complaint that the accused persons were relatives of the complainants.
3. The learned Judicial Magistrate 1st Class (1) Shimla before whom the complaint was registered examined the first complainant Anil Kumar on oath on January 23, 1989. A detailed statement relating to the filing of the aforesaid complaint and averring to the facts stated therein was made by Anil Kumar in which it is also stated that the accused persons had induced the complainants to part with a sum of Rs. 5,101/- though they never intended to execute the sale deed of the flats in favour of the complainants. It was asserted on oath that the accused persons had cheated the complainants in that manner.
4. The second witness examined on oath by the learned Magistrate was Vinay Sood who stated about an agreement having been executed by the accused persons in favour of the complainants for sale of the property for a sum of Rs. 90,000/ - and the payment of a sum of Rs. 5,101 /- by way of earnest money by the complainants in regard to that transaction.
5. After appraising the aforesaid evidence the learned Magistrate directed issue of process against the accused persons summoning them for an offence Under Section 420, IPC.
6. What was said by the learned Magistrate in his order dated May 8, 1989 was :
From the perusal of the statements of the witnesses and the allegations contained in the complaint and the documents filed, I am satisfied that there are sufficient grounds to proceed against the accused for the offence Under Section 420, IPC. Let the accused be summoned accordingly for the said offence.... "
7. The accused persons assailed the aforesaid order in a revision Under Section 397, Cr. P.C. which was heard by the learned Sessions Judge. The learned Sessions Judge came to the conclusion, in the order passed by him on September 1, 1990, that the dispute between the parties appeared to be of a civil nature and the material was not enough to justify summoning of the accused persons for an offence Under Section 420, IPC. He, therefore, allowed the revision petition and set aside the order under challenge by using the words that the :
order under challenge is quashed.
Aggrieved, the complainants have approached this Court for relief in the present revision petition.
8. It has been urged with some emphasis by Shri Chandel that the gravamen of an offence Under Section 420, IPC was the absence of intention on the part of the accused persons to execute the sale deed in favour of the complainants and in failing to take notice of this aspect the learned Sessions Judge had committed an error in law. He has also urged that at the stage when a trial court is to decide upon the question whether the process should be issued Under Section 204, Cr. P.C. the evidence is to be examined only in a cursory manner and it was not to be weighed as if the matter was being dealt with at the trial. The trial Magistrate, according to Shri Chandel, had done so in the instant case but the learned Sessions Judge fell in error in scrutinizing the evidence in a manner as if he was trying the case himself. The order of the learned Sessions Judge, therefore, deserved to be set-aside. The learned counsel placed reliance upon a number of decisions about which a reference will be made by me later on.
9. It is true that at the stage when the trial Magistrate examines evidence Under Section 202, Cr. P.C. and has to decide whether process should be issued against the accused persons or not, the evidence is to be looked into in a cursory manner. It is equally true, however, that a decision by the trial Magistrate in this respect can be examined by the revisional court even in respect of its correctness and propriety when the matter comes up before a revisional Court. It is clear from the language used by the Legislature in Section 397, Cr. P.C. which provides in Sub-section (1) that :
The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its...local jurisdiction for the purpose of satisfying itself...as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed....
10. It is settled that if a set of circumstances reasonably give rise to an inference that the transaction in question involved dispute of a civil nature between the parties, the Criminal Court may refuse to go ahead with proceedings before it irrespective of the fact that on a close examination of the facts, an offence may also appear to have been committed by persons against whom the accusation is made. In the present case, the facts enumerated in the complaint, by themselves, could legitimately lead to an inference that basically the dispute between the two complainants and the accused persons was of a civil nature. The learned Sessions Judge, while exercising powers Under Section 397, Cr. P.C. could and, in my opinion, rightly looked into the evidence on the record as well from that point of view and refused the criminal proceedings to go on. If the learned Sessions Judge would have taken any other view it might, in the circumstances of the present case, have amounted to the abuse of the process of Court.
11. The decisions cited by Shri Chandel may now be noticed.
12. In Mobarik Ali Ahmed v. The State of Bombay , it was observed by the Supreme Court (in para 8 of the report) that whether the representations, when made, were in fact false to the knowledge of the appellant and whether the appellant had a dishonest intention from the outset was a question of fact in respect whereto both the courts below had found against the appellant in categorical terms. The Supreme Court felt that these being questions of fact were no longer open to challenge in an appeal on special leave. That was a case where the matter had gone to the Supreme Court after the appellant before it had been convicted for an offence of cheating Under Section 420 read with Section 34, IPC and the conviction had been upheld by the High Court.
13. In Kewal Krishan v. Suraj Bhan the observations made by the Supreme Court, in a case where it was approached by a complainant who had instituted a case Under Sections 302 and 307, IPC, (in para 9) were that :
...At the stage of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry Under Sections 200 and 202, Cr. P.C., there is prima facie evidence in support of the charge levelled against the accused.... A fortiori, at the stage of Sections 202/ 204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session....
14. On the basis of these observations it has been urged by Shri Chandel that similar considerations would apply to a case like the present where the case was triable by the learned Magistrate himself. There is no dispute with this proposition but the fact which must be noticed is that in the present case, in exercise of its revisional powers Under Section 397, Cr. P.C. wherein the learned Sessions Judge, could have gone into the correctness and propriety of the conclusions recorded by the trial Magistrate, it was found by the learned Sessions Judge that the material on record did not disclose commission of a criminal offence inasmuch as the dispute between the parties was essentially of a civil nature when the essence of the allegations made in the complaint amounted to saying that an agreement of sale entered into by the accused-respondents had not been performed by them.
15. A look at the decision of the Supreme Court reported as Khacheru Singh v. State of U.P. AIR 1982 SC 784 (2) : 1982 Cri LJ 629 (2) shows that nothing has been decided therein by the Supreme Court as a matter of law. It is a very short order which begins by saying that :
We do not see any justification, though we are not expressing any opinion on the merits of the case, for the order passed by the learned Additional Sessions Judge, Meerut in Criminal Revision...which was affirmed by the High Court of Allahabad.... All that the learned Magistrate had done was to issue a summons to respondent No. 2.... If, eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the case may be. But it is difficult to appreciate why the order issuing "summons" to the accused should be quashed....
It is obvious that the decision turned on the peculiar facts of the case.
16. In Nirmaljit Singh Hoon v. The State of West Bengal , the trial Magistrate had refused to issue process on a detailed examination of the evidence before him. The order was upheld by the High Court in revision. The Supreme Court, as is clear from the report of the judgment, noticed the evidence at some length and came to the conclusion that the entire evidence was not such where it could be said that on a prima facie examination it did not disclose commission of an offence by the accused-respondent. As a matter of law it laid down that :
...the test is whether there was sufficient ground for proceeding and not whether there is sufficient ground for conviction....
And, further that :
...the High Court has also to apply the same test when examining the matter in its revisional jurisdiction....
The circumstances obtaining in the present case are much too different to bear any similarity to the decision recorded by the Supreme Court in the aforesaid case. A perusal of the order passed by the learned Sessions Judge would make it clear beyond doubt that the view taken by him that the dispute between the parties was essentially one of a civil nature is founded upon a prima facie examination of the evidence on record and no more.
17. The decision of the Punjab and Haryana High Court in Surjit v. R.P. Jindal Manager 1990 (2) Shimla LJ 948 does not lend any further support to the submissions of Shri Chandel. Apart from extracting an observation of the Supreme Court and saying therein, in a very short order, that :
...In view of the provisions of Section 200 of the Code of Criminal Procedure, the Magistrate has only to see at this stage, whether on the evidence adduced, a prima facie case has been made out. It is not his business to appreciate the evidence and to give any finding as he has done in the present case....
it lays down no principle of law.
18. In Balabhadra Dash v. State of Orissa 1991 Cri LJ 2457, a learned single Judge of the Orissa High Court was dealing with the scope of powers of the Court under Section 482, Cr. P.C. One of the prayers made before the High Court on behalf of the accused persons was to quash the charge, it was observed by the learned Judge (in paragraph 5 of the report) that :
...prayer for quashing charge of taking cognizance ought not to be entertained in a routine manner and unless High Court is satisfied that there is abuse of process of Court or ends of justice demand it, such prayer ought not to be entertained.
The learned Judge refused to exercise the inherent power at that stage on the ground that the accused persons would have opportunity to advance submissions before the learned Magistrate that the materials on record do not call for framing charge against them. It is difficult to appreciate how this judgment helps the complainants in the present case. In any case, what appears clear from this decision also is that where the Court feels that there is an abuse of the process of Court, it would do well to intervene in the matter.
19. In Shri Ram Samp v. Devi Dayal Bhatia 1986 (3) Crimes 328, the Delhi High Court took the view that the facts of the case did not justify interference with the order of the learned Magistrate, issuing process against the accused persons, which was very well reasoned and had taken into consideration the allegations in the complaint as also the evidence adduced in support of it. The learned Sessions Judge had committed an error in setting aside the said order. The case, as is clear from the report of the judgment, was decided on its facts.
20. Some more decisions were cited by Shri Chandel in support of the plea that the scope of powers under Section 397, Cr. P.C. was no different than that under Section 482, Cr. P.C. It is not necessary to notice them for disposing of this revision.
21. The complaint in the present case, itself shows that the dispute between the parties is basically one of a civil nature. Through an application filed on July 3, 1991 on behalf of the respondents, a further fact has been brought on the record before this Court that the complainants had filed a civil suit for recovery of the amount of earnest money which they had paid to the accused persons along with interest and that the entire sum had actually been paid to the complainants. It is true that the order in this respect was passed on June 28, 1991 by the Senior Sub Judge, Shimla, on the basis of statements made both on behalf of the complainants as well as the accused persons, yet, in view of this subsequent development, permitting criminal proceedings to continue against the accused persons would be nothing short of an abuse of the process of Court.
22. In conclusion, I decline to interfere with the order passed by the learned Sessions Judge. The revision is dismissed.