Tapash Kumar Mazumdar S/O Dr. T. ... vs Sumit Usha Martin Finance Ltd., ...
2002 Latest Caselaw 1180 Del

JUDGMENT

V.S. Aggarwal, J.

1. Tapash Kumar Mazumdar (for short the petitioner) is aggrieved by the order passed by the learned Metropolitan Magistrate dated 24th January, 2000. By virtue of the impugned order the learned Metropolitan Magistrate had summoned the petitioner and others for the offence punishable under Section 138 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code.

2. Some of the relevant facts are that Sumit Martin Finance Ltd had filed a criminal complaint in which the petitioner had also been arrayed as a respondent accused. It had been pleaded that the petitioner is one of the Additional Directors of Pertch Computers Ltd. In the course of the business the complainant had been approached by Pertch Computers Ltd. (for short the company) through its Managing Director, Directors and Additional Director in the month of October 1996 for hire purchase of a large quantity of computers. The assurance had been given by the petitioner and others that they would discharge their debt liability. Acting on the said assurance the complainant had agreed to enter into the agreement of hire purchase and thereby to grant hire purchase facility. The complainant had disbursed an amount of Rs. 50 lakhs towards the purchase of the equipment and had given it to the company on hire for a period of three years. It is alleged to discharge the liability that had accrued the company had issued two cheques which were dishonoured on presentment. It is unnecessary to go into the other details but it has been asserted that the petitioner is an additional director of the company and is also the person at the time of commission of the offence was in charge and responsible to the company for the conduct of the affairs of the said company.

3. The learned Metropolitan Magistrate had recorded the preliminary evidence and thereupon held that after perusing the allegations in the complaint and the evidence led thereto a prima facie case appears and accordingly summoned the petitioner and others for the above said offences.

4. Aggrieved by the same the present petition has been filed. It is the assertion of the petitioner that the learned Metropolitan Magistrate had committed an error in taking cognizance of the alleged offence. So far as petitioner is concerned he is stated to be not the person in charge and responsible to the day-to-day conduct of the company. There was no evidence (preliminary evidence) against the petitioner to satisfy the above said ingredients. It is further asserted that there is no material to show that petitioner had induced the complainant and thereby such an offence had been committed. At best it was stated that it was a civil liability. Needless to state that the petitioner as such has been contested by the complainant.

5. Learned counsel for the petitioner had alleged that petitioner was not the director of the company and therefore he could not have been arrayed as the accused. He has no connection with the affairs of the said company.

6. So far as this particular contention is concerned, this indeed relates to the merits of the matter. At this stage no detailed opinion need be expressed nor detailed examination would be required. The preliminary evidence and other material on record has only to be seen. Consequently for purposes of the present order only the contention is rejected. The court is hastening to add that this should not be taken as an expression of opinion at the subsequent stage.

7. The main argument of the learned counsel for the petitioner in this regard had been in terms that in the preliminary evidence produced before the learned Metropolitan Magistrate there was no material shown nor there was any evidence that the petitioner was in charge and responsible to the company for the conduct of the affairs of the said company. According to the learned counsel in the absence of any evidence rigors of Section 141 of the Negotiable Instruments Act could not have been drawn in this regard. Attention of this court was therefore drawn towards the preliminary evidence that had been produced.

8. To appreciate the said particular controversy one can refer with advantage to the relevant material on the record. In preliminary evidence the complainant had produced Julius Samson, its Vice President. He had stated that petitioner is one of the directors of the company. After stating about the cheques that was presented and dishonoured he added further:

".....The respondent No. 2 is the signatory of the dishonoured cheques in question and is also the person in-charge and responsible to for the day to day conduct of the affairs of the respondent No. 1 company. My complaint is Ex. CW1/A46 is correct and the same bears my signatories at point 'A' and the same may be read as part of my evidence."

In other words, specifically it was not stated in the preliminary evidence that petitioner was in charge and responsible to day to day conduct and affairs of the company. But it had been added that the complaint is Ex. CW1/A46 and it may be read as part of the evidence. As already pointed above the learned Metropolitan Magistrate while passing the impugned order had recorded specifically that he had gone through the complaint and the evidence. The short question therefore that came up for consideration has been as to whether the trial court was justified in reading the complaint and issuing summons on that basis.

9. To keep the record straight reference should be made to paragraph 36 of the complaint in which assertions as against the petitioner reads as under:-

"That the respondent/accused No. 2 is the Managing Director, respondent/accused Nos. 3, and 4 are the Directors and respondent/accused No. 5 is the Additional Director of the respondent No. 1 company, and also being the person who, at the time of the commissioning of the offence, were in-charge of and responsible to the respondent No. 1 company for the conduct of the affairs of the said company, are also guilty of the offence complained of hereinabove particularly, having regard to the fact that the offence has been committed to the knowledge of the respondents/accused Nos. 2 to 5 and that the said respondents/accused have not exercised all their due diligence to prevent the commissioning of the offence. In this view of the matter and in view of the provisions of Section 141 of the Negotiable Instruments Act, 1881, the said respondents/accused are also guilty of the offence and are liable to be prosecuted and punished therefore."

In other words in the complaint it had been pleaded that the petitioner along with others was in charge and responsible to the company for the conduct of the affairs of the said company.

10. Chapter XV of the Code of Criminal Procedure deals with the procedure with respect to complaints to magistrates. Under Section 200 of the Code of Criminal Procedure a magistrate taking cognizance of an offence shall examine on oath and the witness is present and substance of such examination shall be reduced into writing. There are two exceptions when magistrate need not examine the complainant (a) if the complaint is by a public servant acting or purporting to act in discharge of his official duties and (b) if the magistrate makes over the case for inquiry or trial to another magistrate. Section 203 of the Code of Criminal Procedure reads:-

203. Dismissal of complaint - If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceedings, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

11. Similarly Section 204 of the Code of Criminal Procedure provides that if the magistrate finds that there is sufficient grounds for proceeding he can issue summons or warrants as deemed appropriate in the facts of the case. The scheme of the provisions clearly show that the magistrate is not required to ignore the contents of the complaint. This is for the reason that Section 203 of the Code of Criminal Procedure the magistrate can consider the statements on oath (if any) or in other words has to act on the material on the record.

12. In this regard reference can well be made to a Division Bench decision of this court in the case of Dhanvinder Singh and Ors. v. State of NCT of Delhi and Anr. . The Division Bench held that at the initial stage the court was only constrained to consider the assertions made in the complaint and the supporting documents and not the defense of the accused filing the complaint.

13. Similarly in the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Anr. the Supreme Court held:-

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made to the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

14. More close to the facts of the present case indeed is the decision of the Kerala High Court in the case of Ammini Amma v. Sukumaran 1981 Kerala Law Times 266. Therein too the allegations in the complaint were looked into before summoning the concerned person. Almost a similar question came up for consideration and in paragraph 5 repelling such an argument the court held:

"The scheme and purport of Sections 200, 203 and 204 of the Code are not sufficient to show that the averments in the complaint are not to be looked into for the purpose of taking a decision either to dismiss a complaint under Section 203 or to issue process under Section 204 of the Code. This is made clear by the reference is Section 203 to the words "if any" occurring after the words "statement on oath of the complainant". This make it clear that complaint is also, at any rate, one of the records to be looked into for the purpose of taking a decision under Sections 203 and 204 of the Code. It cannot be said that Court can look into the sworn statement only and not the complaint itself."

15. One finds in respectful agreement with the said view. It is therefore obvious that the learned Metropolitan Magistrate was justified in not only considering the preliminary evidence but also the contents of the complaint. If he has considered the contents of the complaint there is no illegality in this regard. Consequently the contentions so much thought of by learned counsel must fail.

16. No other argument had been raised.

17. For these reasons petition being without merit fails and is dismissed.