Pawan Varshney vs State Of U.P. And Others
2011 Latest Caselaw 1263 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No.50
 

 
Criminal Miscellaneous Writ Petition No.6457 of 2011
 

 
Pawan Varshney         .......................         Petitioner
 
Versus
 
State of U.P. and others    ..........................    Respondents
 

 

 
Hon'ble Vinod Prasad, J.

The petitioner Pawan Varshney has preferred present writ petition with the prayer to issue a writ of certiorari quashing the summoning order dated 1.5.2010, under Section 420 I.P.C., passed by Additional Chief Judicial Magistrate, court no.3, Aligarh in Complaint Case No.238 of 2010 vide Annexure No.6 to this petition. Challenge has also been thrown to the order of affirmation dated 11.2.2011 passed by Additional Sessions Judge, court no.12, Aligarh in Criminal Revision No.502 of 2010, vide Annexure No. 8 to writ petition.

According to the pleadings made in the writ petition and Annexures appended herewith, the gravamen of the prosecution allegations are that complainant respondent no.3 had a mobile recharge shop in his house at 910-A, New Tika Ram Colony, Lane No.1, Naurangabad, P.S. Gandhi Park, Aligarh, U.P. On 12.5.2009 accused Pawan Varshney, Vikash Maheswari, Sushil Sharma, Deepak Sharma, B.K. Sharma, Girish Chandra and Rakesh K. Govil approached respondent no.3 at his house and accused Sushil Kumar Sharma introduced accused B.K. Sharma as Managing Director of a company and informed respondent no.3 that the said company wants to do business in Aligarh by opening a Branch Office and since the location and condition of respondent nos.3 shop is suited, therefore, they are interested in opening Branch Office there. Respondent no.3 was further informed that the company deals in gold chip, heart guard, mobile cover and other mobile gazettes and carries a goodwill in the market and therefore respondent no.3 should consent for being an authorized dealer. Many allurements along with the aforesaid disclosure were given to respondent no.3. Accused persons also handed over a printed booklet and posters of the company. It was also intimated to respondent no.3 that for obtaining authorized dealership a security amount of Rs. one lac will have to be deposited on which 18% quarterly interest will be paid and on the sale of goods 8% commission will also be paid and the agreement for dealership will have to be inked on a non judicial stamp of Rs.100/-. On the deceitful representation made by the accused, respondents no.3 gave Rs. 95,000/-(Rs. ninety five thousand) through Bank draft No.207041 of Central Bank of India, Naurangabad, Aligarh to the accused on 27.5.2009 in the name of Advance Infra and Amenities Ltd. Gurgaon alongwith Bank Draft D.D. No.800189 of Rs.5000/- dated 12.6.2009 and cumulatively respondent no.3 had paid rupees one lac to the petitioner, who had introduced himself to respondent no.3 as ASM of the said company. It is alleged that respondent no.3 was told that he has become authorized dealer and the letter in this respect from Head Office, Gurgaon shall soon reach him. Allegations by respondent no.3 further is that till the date of filing of complaint dated 15.2.2010, no letter appointing respondent no.3 as authorized dealer was issued, no goods were dispatched by the alleged company respondent no.3 for sale nor 18% quarterly interest was paid to respondent no.3 and when contacted on phone no satisfactory answers were given and when the money was asked to be repaid, the said request was turned down.

It was on the aforesaid allegations, that respondent no.3 by hatching up a conspiracy was cheated by the accused of rupees one lac.

On 7.2.2010 police station Haza Gandhi Park, Aigarh was contacted by respondent no.3 but they refused to register his F.I.R. and consequently, on 8.2.2010 letters were sent through registered post to S.S.P., Aligarh S.H.O. police station Haza Gandhi Park, Aligarh with typed contents but even then no F.I.R. was registered.

On such an allegations respondent no.3 approached A.C.J.M. court no.3, Aligarh under Section 156(3) Cr.P.C. on 15.2.2010 invoking its power seeking a direction to the police to register the F.I.R. and investigate the offences.

Vide order dated 6.3.2010 A.C.J.M. court no.3, directed application under Section 156(3) Cr.P.C. to be registered as complaint case vide Annexure No.3 to this petition. Statement of complainant vide Annexure No.4 under Section 200 Cr.P.C. were recorded and under Section 202 Cr.P.C. statement of P.W.1 Govind Prasad Saxena vide Annexure No.5 were taken down. After perusal of the statement and the complaint, learned Magistrate summoned the accused Sushil Sharma, Pawan Varshney and Rakesh K. Govil for offence under Section 420 I.P.C. vide order dated 1.5.2010 Annexure No.6 fixing 4.6.2010 for their appearance. Challenged to the summoning order was made by the petitioner Pawan Varshney before Sessions Judge, Aligarh in Criminal Revision No.502 of 2010, which revision was heard and dismissed by Additional Sessions Judge, court no.2, Aligarh vide impugned order dated 11.2.2011. Hence, this writ petition.

I have heard Sri S.S. Chauhan, learned counsel for the petitioner and learned AGA for respondent no.1.

It was submitted by petitioner's counsel that no inquiry was conducted by Magistrate prior to passing of summoning order dated 1.5.2010 Annexure No.6. Next he submitted that there was an agreement clause executed between complainant and accused duly signed by respondent no.3 and stipulation clause 44 thereof provided for an arbitration in case of dispute and therefore, respondent no.3 should have gone for arbitration instead of launching criminal prosecution and consequently criminal trial of the petitioner is tainted with malafidy. Additionally, it was submitted that stipulation contained in clause-49 of the said agreement had determined the jurisdiction of the court to be at Delhi and therefore complaint at Aligarh against the petitioner was not maintainable and consequently summoning order has been passed illegally by wrong usurpation of jurisdiction. Further it was submitted that Magistrate should have got an investigated conducted on the application moved by respondent no.3 instead of treating it to be a complaint and therefore the course adopted by the Magistrate is illegal and unsanctified. Learned counsel further buttressed his contention by citing amendment made in Section 202 Cr.P.C. vide amending Act of 2005 w.e.f. 23.6.2006. On the strengthen of the aforesaid submissions, it was prayed that summoning order of the petitioner be quashed and the writ petition be allowed.

Learned AGA conversely refuted all the contentions raised by petitioner's counsel by contending that the writ petition sans merit and be dismissed as none of the impugned orders Annexure nos. 6 and 7 requires any interference by this Court.

I have heard learned counsel for both the sides and have gone through the record.

Critical appreciation of the allegations and the pleadings made in the writ petition indicate that none of the submissions by petitioner's counsel has substance in it. Dealing with harangued submission in seriatum, it is found that so far as the first contention regarding non conducting an inquiry is concerned, the same is not borne out from the record. Magistrate prior to passing of the summoning order did conduct an inquiry and examined the complainant under Section 200 Cr.P.C. and his witness Govind Prasad Saxena under Section 202 Cr.P.C. After conducting an inquiry, as is contemplated under Cr.P.C. that the Magistrate has passed the impugned summoning orders and therefore, impugned order cannot be castigated for the argument raised by petitioner's counsel. The first contention raised consequently is repelled.

Turning towards the second submission regarding arbitration clause, it is to be noted that the stipulation in the sketched agreement between respondent no.3 and the petitioner relates only to a civil dispute and not with a criminal offence, prosecution of which has to be conducted in consonance with the provisions contained in the Cr.P.C. It is trite law that civil suits and criminal prosecution can go on simultaneously if the levelled allegations fall within the purview of both. Otherwise also any stipulation contrary to law and restraining one party from seeking recourse to the course of law in case of injury done is void ab initio and cannot be countenanced. A criminal prosecution has to be conducted in consonance with the provisions of Cr.P.C. and the jurisdiction of the court is determined under Chapter VIII of the code. Sections 177, 178, 179, 180 of the Code in this respect can be had. Since criminal prosecution can be simultaneously conducted alongwith civil dispute, the second submission of learned counsel for the petitioner in respect of stipulation of arbitration is hereby rejected.

Coming to the third submission that the jurisdiction of the Court has been determined under Clause 49 of the Agreement, it is to be noted, as stated above, that in matter of criminal trial, jurisdiction has to be determined under Chapter VIII. Perusal of the allegations without any ambiguity indicate that a part of cause of action had occurred at Aligarh, where the accused persons had approached the victim-complainant and had given him a deceitful assurance and consequently complaint was maintainable in District Aligarh. Otherwise also perusal of the agreement vide annexure no. 1 to this petition provides in Clause 49 as follows;

"This agreement shall be governed by and construed in accordance with the laws of India. The Courts of Delhi alone shall have exclusive jurisdiction relating to or arising from any matter under this Agreement."

Since the stipulation 49 itself provides that sketched agreement has to be construed in accordance with laws of India, there cannot be any ouster of provisions of Cr.P.C. in respect of criminal trial and offences committed by the petitioner. I.P.C. and Cr.P.C. are the two statutes, which govern criminal trial and, therefore, prosecution of the accused in accordance with provisions of Cr.P.C. in District Aligarh cannot be questioned. In view of above, the third submission of counsel for the petitioner in respect of jurisdiction of the Court is negated and is hereby rejected.

Coming to the last submissions regarding amendment under Section 202 Cr.P.C. vide amending Act of 2005 is concerned, it is revealed that the words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were incorporated for the purposes that no unscrupulous complainant be allowed to harass an accused residing outside the jurisdiction of the Magistrate by filing a frivolous complaint with baseless allegations. Legislative intent, therefore, is clear that an inquiry must be conducted under Section 202(1) of the Code in a case of an accused residing at a place beyond the area over which the Magistrate exercises jurisdiction and consequently there is no scope for the Magistrate than to conduct an inquiry under Section 202 Cr.P.C. This amendment was brought by the legislature, as earlier to it inquiry under Section 202 Cr.P.C. was not sine qua non in all cases and the Magistrate could have eschewed it prior to the said amendment. The aforesaid amendment has been brought in to stop harassment of innocent accused by unscrupulous litigant. This amendment however, does not mean that an investigation by police be got conducted. Contention by petitioner's counsel cannot be countenanced as the same run counter to the legislative intent. The salutary purpose for which amendment has been incorporated by amending Act of 2005 with effect from 23.6.2006 cannot be stretched to absurdity. For a clear understanding, Section 202(1) Cr.P.C. is referred to below:-

"202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in an case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceedings:

Provided that no such direction for investigation shall be made-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200."

The obligation by the amending Act was casted on the Magistrate for the above purpose mentioned in preceeding paragraph.

Further the above submission of petitioner's counsel does not impress at all also because, as stated above, it has already been recorded that the Magistrate had conducted an inquiry prior to passing of impugned summoning order and consequently his action cannot be castigated.

Since none of the contentions raised by counsel for the petitioner has got appealing nature, writ petition being bereft of merits, is hereby dismissed. However, a direction is issued to the courts below that in case, petitioner surrenders within three weeks from today and makes an application for bail, his bail prayer be considered in accordance with law on the same day in complaint case no. 238/2010 (Anurag Saxena Vs. Pawan Varshney)

Writ petition is dismissed.

No order as to costs.

Dt.21.4.2011

RK/AKG/-6457/2011