AJAY MEHRA Vs. DURGESH BABU

JUDGEMENT

(1.) Leave granted. Heard Mr. Dave for the accused appellants and Mr. Jain for the complainant respondents. On the basis of a complaint alleging commission of offence under Sections 406/420, the Magistrate took cognizance and issued process in 11.9.1998. The accused thereafter immediately approached the High Court invoking jurisdiction under-Section 482. The High court thought it appropriate that the accused has approached prematurely and directed that the accused. . approach the Magistrate again for recalling the process, obviously following the judgment of this Court in Mathew's case. Accused then approached the Magistrate and magistrate after reconsideration of the matter came to hold that the complaint did not mention that the accused have dishonestly and with mala fide intentions induced the complainant or had induced in any manner about the receiving of the amount in a dishonest manner and the ingredients of the offence under section 420 do not appear. But all the same, the magistrate was of the opinion that that should be a matter for trial and there is no infirmity in issuing process so far as the offence under section 406 is concerned. The Magistrate, however, was of' the opinion that the necessary ingredients for offence under Section 420 having not been established, he recalled the issuance of process as far as the 420 is concerned. The accused then approached the high Court under Section 482. The High Court by the impugned order came to hold that it would not be possible to hold that on the basis of the statement in the complaint as well as the statements made by the complainant and his witnesses under Section 202 that no case under Section 406 has been made out, and accordingly refused to invoke its jurisdiction under Section 482, The High Court, however, further observed that the Magistrate may reconsider the question of framing of charge under Section 420 under the available materials.

(2.) Mr. Dave, the learned Senior Counsel appearing for the accused appellants contends that on the vague assertions made in the complaint read with the statements of the complainant and his witnesses in the enquiry under Section 202 and in view of the conclusion of the Magistrate while considering the application for recalling of the process, the High court failed to exercise its jurisdiction under section 482 allowing the criminal proceedings to be continued which would be ultimately the abuse of the process of the Court. Mr. Jain, learned Senior Counsel appearing for the complainant - respondents, on the other hand, contended that the statement of the complainant, if read with the assertions in the complaint, undoubtedly satisfies the basic ingredients for taking cognizance of the offence under section 406 as well as under Section 420, and therefore there is no infirmity with the order of the High Court so as to be interfered with by this Court under Article 136 of the constitution.

(3.) Having examined the rival contentions and having applied our mind to the assertions made in the complaint as well as statement of the complainant in the enquiry under Section 202, we have no hesitation to come to a conclusion that the ingredients of offence under section 419 have not been made out and therefore the question of requiring the accused to face trial under Section 420 cannot be sustained. The further question, however, still remains to be considered whether on those materials would it be open for the Court to quash the cognizance under Section 406 or it would be a matter for trial. Mr. Dave, however, contended that while framing of charge the Court was duty-bound to look into the prima facie materials and in that connection he wanted to press before us the several materials including the notice issued. But that stage, in our opinion, has not reached in the case. The magistrate has merely taken cognizance of the offence and has issued process and therefore , at this stage the question of consideration of other materials does not arise and Court will have to take a view taking into account the fact that all the statements made in the complaint as well as the statement made under section 202, if taken on its face value, an offence can be said to have been made out. Applying that standard, we are of the considered opinion that there is no error in taking cognizance of the offence, though we make it clear that it would be open to the accused while framing charge to argue as to whether the materials do permit framing of charge in the case in hand. The appeal is accordingly disposed of it will be open' for the accused to move the Magistrate for exempting appearance under Section 205 of Cr. P. C. Appeal disposed of.