Gauhati High Court
Kishor Sharma vs Indrajit Kumar Mazumdar on 11 December, 2018
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/7
GAHC010139332018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 1193/2018
1:KISHOR SHARMA
S/O LATE SH MUNISH RAM SHARMA
MEMBER OF MANAGEMENT
TAXILA BUSINESS SCHOOL
SECTOR-9,
MANDIR MARG,
MANSAROVAR, JAIPUR
RAJASTHAN, PIN -302020
VERSUS
1:INDRAJIT KUMAR MAZUMDAR
S/O LATE MAHESH MAZUMDAR
R/O 1C, GEETANJALI HEIGHTS
NEAR GURUKUL GRAMMER SCHOOL,
P.S. GEETANAGAR,
GUWAHATI-20,
DIST. KAMRUP (M),
ASSAM.
Advocate for the Petitioner : MR. T BORKOTOKY
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
Date : 11-12-2018 Heard Mr. I. Choudhury, learned counsel for the petitioner.
2. The petitioner, Kishor Sharma has preferred this criminal petition under Section 482 CrPC Page No.# 2/7 praying for quashing the order dated 27.06.2016, passed by the learned Sub-Divisional Judicial Magistrate (Sadar), Kamrup (Metro), Guwahati, in C.R. Case No. 1158 c/2016, wherein the learned Magistrate, after recording the statement of the complainant, sole respondent herein and his witness, took cognizance of the offences under Section 406/420/34 of the IPC against the petitioner and 4 (four) others named in the said complaint petition and also for quashing the entire proceeding of the said C.R. Case, pending before the said Magistrate.
3. The sole respondent on 20.04.2016 filed a complaint petition before the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati, being C.R. Case No. 1158 c/2016, praying for initiation of a proceeding against the accused persons, named therein, under Sections 406/420/34 of IPC, stating that the accused persons, through internet, issued an advertisement in the name of 'Taxila Business School' situated at Mansarover, Jaipur, Rajasthan, offering various courses, including the course of PGDM, showing its infrastructures as well as the amenities for its student of a very high standard, which looked very impressive.
4. Being very impressed with the advertisement in the website of said business school, including its infrastructure and other amenities for the students that being displayed, the complainant decided to admit his daughter in the said business school to pursue PGDM course. The complainant contacted the administration of the said business school, in its telephone number, as given in the website and on being asked by it to pay Rs. 15,000/- as registration fees for the said course for his daughter, he on 20.06.2014 paid a sum of Rs. 15,000/- in favour of the said business school, through bank transaction, against the name of his daughter for her PGDM course, in the said school. Again as per their advice, an amount of Rs. 20,000/- required for qualifying telephonic interview was paid through bank transaction in the name of Shree Mitra Gyan Shiksha Samiti, the trust of the said business school.
5. On 27.06.2014 said business school informed the complainant that on the basis of telephonic interview and the MAT score, his daughter is selected for the said course and also informed him that if at the time of her admission, entire payment of the course is made within a week, scholarship of Rs. 40,000/- shall be granted to her.
6. The complainant contended that as he had just retired at that moment, he had sufficient money and, therefore, paid the full fee amounting to Rs. 5,25,056/- in favour of the said business school through bank transaction on 27.06.2017 itself. On receipt of such money, Page No.# 3/7 the administration of the said business school asked the complainant to visit the said school along with the student and on such invitation, the complainant along with his daughter visited the said business school in the given address on 24.07.2014 and on their such visit, they were shocked and surprised to see the reality about the poor infrastructure and the scenario of the said school, which is not at all same as advertised in the website.
7. The complainant and his daughter, being cheated and deprived of such infrastructure and the amenities of said business school as advertised in the website, the student concerned, his daughter, refused to pursue the PGDM course in that school and, as such the complainant asked the administration of the school to refund of the amount that he already paid through bank transaction to them.
8. On being asked to refund the amount deposited by him, the complainant was asked by the administration of the said business school to file an application, informing that the said amount shall be returned to him by deducting Rs. 5,000/- from the said amount towards necessary expenses. Accordingly, the complainant filed an application for refund of the said amount that already deposited in favour of the said business school up to 27.06.2014. But as the said amount being not refunded by the authorities of the said business school and as he and the student concerned, i.e. his daughter being cheated by the administration of the said school making false and fake advertisement in the website, the petitioner preferred the complaint petition against the accused persons, including the petitioner, who are in the administration of the said Taxila Business School.
9. It is contended by the petitioner that the complainant in the complaint petition as well as his statement and the statement of his witness, recorded by the learned Magistrate, neither discloses any material against him with regard to his involvement in the alleged crime nor any ingredients of Sections 406/420/34 of IPC and that the learned Magistrate illegally took cognizance of the offences against him in the said case.
10. Mr. Choudhury, learned counsel for the petitioner, further submits that as the accused persons in the complaint petition are outside the territorial jurisdiction of the learned SDJM (S), Kamrup (M), Guwahati, he without making any proper enquiry under Section 202 CrPC, took cognizance of the offences under Section 406/420/34 of IPC against him and others and Page No.# 4/7 issued the process.
11. From the perusal of the complaint petition dated 20.04.2016 as well as the orders passed by the learned Trial Magistrate in the said complaint petition, it is seen that after recording the statement of the complainant and his witness on 31.05.2016 under Section 202 CrPC, he made an enquiry by himself from the complaint petition and the statement of the complainant and his witness recorded on 31.05.2016 and, thereafter, on being satisfied that there are prima facie materials to proceed against the accused persons, passed the impugned order on 27.06.2016, taking cognizance of the offences under Sections 406/420/34 of IPC against the accused persons of the said complaint in C.R. Case No. 1158 c/2016.
12. During the course of the argument, Mr. Choudhury, learned counsel for the petitioner, submits that though cognizance was taken on 27.06.2016 in the said C.R. Case No. 1158c/2016, but very recently from the net, the petitioner could come to know that 20.12.2018 is the date fixed for his appearance in the case.
13. It is settled law that the learned Magistrate, while taking cognizance of the offences on the basis of a complaint and on recording the statement of the complainant and his/her witness(s) need not require to make a detailed enquiry so as to find whether there are sufficient materials in the complaint petition as well as the statement of the complainant and his/her witnesses, so as to punish the accused persons of the complaint case finally under the relevant provisions in which cognizance of the offences are taken; but the Magistrate is only required to satisfy primafacie about the materials available in the case so as to proceed against the accused persons named in the compliant petition.
14. The Hon'ble Supreme Court in the case of Vadilal Panchal -Vs- Dattatraya Dulaji Ghadigaonkar, reported in AIR 1960 SC 1113 have held as follows:
"Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, The scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging Page No.# 5/7 the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process."
15. In Chandra Deo Singh -Vs- Prokash Chandra Bose, reported in AIR 1963 SC 1430, the Hon'ble Supreme Court observed as follows:
"No doubt, one of the objects behind the provisions of Section 202 CrPC is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry."
"The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage, for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial."
"For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry."
"No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."
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16. In the case of Smt Nagawwa -Vs- Veeranna Shivalingappa Konjalgi and Others, reported in (1976) 3 SCC 736, the Hon'ble Supreme Court have held that -
"It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one."
17. From the perusal of the complaint petition as well as the statements of the complainant and his witness, which are annexed with this petition, it can be seen that the Taxila Business School alleged to have been managed by the accused persons of said complaint petition, including the petitioner and in the website, the administration of the said school have shown that it has best infrastructure and admirable amenities for its students and after taking admission of his daughter in the said institute in PGDM, paying the entire money for its complete course, when the complainant visited the said school with his daughter, who took admission in the said institute, found nothing as advertised in the website and found that they are cheated by the administration of the said business school, who took the money from the complainant by publishing false advertisement. It is also seen that though complainant asked for the refund of the amount that he deposited, for his daughter's PGDM Course, which the said business school took fraudulently from him, are yet to be repaid.
18. It is settled that a Magistrate is empowered to hold an enquiry into a complaint of an offence in order to ascertain whether there is sufficient foundation for it to issue process against the person or persons complained against. In the present case clearly acted in the exercise of the powers under Section 202 of the CrPC, the Magistrate on perusing the complaint, recording the statement of the complainant and his witness, that are adduced by the complainant in support of his complaint as he wished to produce and on consideration of all these came to the conclusion that that evidence is worthy enough of the credence as to warrant of his taking further action in the matter i.e., in taking cognizance of the offences as alleged in the complaint petition and accordingly issued process against the petitioner and other accused persons of the said complaint under Sections 406/420/34 of the IPC.
19. For the reasons above, the Court did not find any material illegality with the impugned Page No.# 7/7 order dated 27.06.2016 passed by learned Sub-Divisional Judicial Magistrate (Sadar), Kamrup (Metro), Guwahati, in C.R. Case No. 1158c/2016 so as to interfere with the said order.
20. Accordingly, this criminal petition, being devoid of merit stands dismissed.
JUDGE Comparing Assistant