RAM LAL Vs. PARVINDER SINGH

JUDGEMENT

(1.) Parvinder Singh Monga, respondent No. I, had filed a complaint on July 27, 1977under Sections 406/420/468/471/120B Indian Penal Code in the court of the Metropolitan Magistrate, New Delhi, against six persons including the petitioners, Ram Lal and Subhash Jain, partners of All India Travel Services, Janpath, New Delhi. In that complaint all the six accused persons were summoned by the learned Magistrate by his order date December 16, 1977 for the offence punishable under Section 406/34 IPC. The petitioners preferred a criminal revision petition against the order summoning them in that complaint. S.S. Jolly and 0.P. Trehan two of the other accused also filed a separate criminal revision petition for quashing the order of summoning and the complaint as filed against them. Yogeshwar Dayal, Judge by his order date July 30, 1979 allowed both the revision petitions and the proceedings against four of the six accused were quashed. Parvinder Singh Monga complainant, respondent No. I .thereafter filed a fresh complaint against all the six accused persons on April 16, 1980 on the same basic facts and making some additions thereto. This complaint was filed against the accused persons for the offences punishable under Sections 420/468/471/120BIPC. The complainant has alleged that he is one of the partners of the firm M/s. Air Lifters which carries on its business of subagents for clearing, forwarding, packing and shipping of consignments. Kuldip Singh Bedi (since died) and Paramjit Singh Bedi, accused No. I and 2, were the partner of M/s. Pamjust doing the business of export. On the assurance of accused No 1 and 2 the complainant bandied the consignments of accused No. 1 and 2, and had been paying handling charges to the concerned exporter. The complainant sent many consignments on behalf of accused No. I and 2 through Iraqi Airways of which the present petitioners are partners and who are authorised acrgo agents. The complainant bore all the charges in respect of the consignments of accused No. I and 2, namely, custom charges, wharehousing and handling charges, transportation and freight charges by the Iraqi Airways. After payment of all these Charges and getting the consignments cleared from the customs authorities and obtaining GRI forms, customs clearance and airWaybills the complainant used to send these documents to accused No. 1 and 2. Accused No. 1 and 2 after submitting the various authenticated documents used to get payments through the Punjab National Bank of which accused No. 3 and 4 were the concerned officers. A sum of Rs. 64,137.70 remained unpaid with accused No. 1 and 2 to which the complainant was entitled. Later on the assurance of accused No. 1 and 2 that the entire arrears of the complainant would be cleared the complainant again. sent on April 23, 1977 a consignment of 144 parcels of accused No. 1 and 2. He got the customs clearance regarding t same and got the GRI forms authenticated and stamped by the Customs Officer on April 18, 1977. The complainant then approached accused No. 5 and 6 i.e. the present petitioners. for getting air waybill pertaining to the said consignment. He was informed by them that the same had been taken away be accused No. I and the 7th copy of air waybill was hunded over to the complainant which bore his firm's name in the agent's column" ". The complainant was surprised to note there the actual date of shipment of March 9, 1977 which was actually made on April 23, 1977 and which according to the complainant was subsequently added by the present petitioners. On the demand of the complainant's dues he was given a hundi for the sum of Rs. 64,137.70 on May 19,1977. The hundi was dishonoured by the Punjab National Bank on presentation on May 20, 1977 with the remarks "acceptance refused". It was further alleged that on April 23, 1977 and again on May 19, 1977 accused No. I to 4 knew that the duplicate and triplicate copies of the GRI form was in the lawful custody of the complainant, but they conspired and fabricated the GRI form under the colour that the same was not available as the same was lost. As regards the present petitioners, accused No. 5 and 6, it is stated in the complaint that they in conspiracy .with accused No. I and 2 gave the air waybill to accused I and 2 though there was a dear cut mark ot "AL" on it and they fabricated the date of shipment of March 9,1977 so as to facilitate the opening of the letter of credit for which the last date was March 10, 1977. Accused No. I to 4 thus in conspiracy fabricated the air waybill by antedating the same as of March 9, 1977 when the same was actually prepared on April 23, 1977. It is also alleged that these four accused persons in conspiracy had forged the seal of "BA" on the GRI duplicate and triplicate form so that they could get the payment of the letter of credit any time. The complainant adduced oral and documentary evidence in the preliminary enquiry as held by the learned Magistrate on the complaint. Shri Mahabir Singhal, Metropolitan Magistrate, passed the impugned order on August 31,1981 as below:

(2.) None appeared on behalf of the complainant, respondent No. 1, at the hearing of this petition. I have heard the petition ex pane.

(3.) Mr. Dinesh Mathor, learned counsel for the petitioners, contended that the impugned order had been passed by the learned Magistrate mechanically, without the application of mind, summoning all the six accused persons and without even indicating if they were summoned for all the offences as prayed for in. the complaint or for some of them and if so, for which of them. It was submitted that the impugned order as such is bad and deserves to be quashed. He also made submissions on the merits of the case and contended that no case for proceeding against either of the two petitioners for any offence whatsoever was made out. I had first thought of disposing of the petition after going through the merits of the case namely, on the consideration of the question as to whether any case for summoning of either of the two petitioners for any of the offences in question was made out. However, it appears to me that this is a case of patent non-application of mind by the learned Magistrate in passing the impugned order. From the allegations as made by the complainant in the complaint as stated by me above, it is clear that there are different allegations made by the complainant against three sets of the accused persons and they are for distinct offences namely : (i) of entering into criminal conspiracy as punishable under Section 120 IPC; (ii) of forgery and of using forged documents as punishable under Sections 468 and 471 Indian Penal Code ; and (iii) of cheating as punishable under Section 420 Indian Penal Code are alleged to have been committed by the three sets of accused persons. Under such circumstances the learned Magistrate ought to have passed a speaking order indicating as to from which material a case for proceeding against different sets of accused including the present petitioners with whom we are presently concerned was made out and for which of the offence. The learned Magistrate has, however, not given any reason for summoning the accused parsons or the offences for which they been summoned and the impugned order is opscure. It may be stated here that I first thought of dealing with the petition on merits however, on a reconsideration of the entire matter I am of the view that it would be appropriate to quash the impugned order on account of it being a non-speaking order and having been passed mechanically without the application of mind. It may be pointed out here that the order summoning the accused 0.P. Trehan and S.S. Jolly accused No 3 and 4, was earlier quashed by J D. Jain. J. on a petition by them under Section 482 Cr.P.C. by his order dated April 28, 1983. The other similar petition of Paramjit Singh Bedi, accused No. 2 was, however, dismissed by him by the same order. In the end I quash the impugned order and direct the learned Magistrate to pass a speaking order in the case as regards the summoning or otherwise of the present petitioners after giving an opportunity to the complainant or his counsel of addressing the court about the same. The record of the case be sent back to the court concerned through the Additional Chief Metropolitan Magistrate, New Delhi.