Apex Traders vs Satnam Sales Corporation & Ors
2014 Latest Caselaw 6762 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  CRL.M.C. 2425/2010

%                                         Decided on: 15th December, 2014

      APEX TRADERS                                     ..... Petitioner
                         Through      Mr. Abhinash Kr. Mishra, Mr. S.S.
                                      Mishra, Advs.
                         versus

      SATNAM SALES CORPORATION & ORS        ..... Respondent
                   Through Mohd. Zahid, Adv. for R-2&3.
                           Mr.Yogesh Verma, APP for State.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)

1. The petitioner filed a complaint before the learned ACMM impleading the respondents No.1 to 4 as accused. The complainant alleged that in the month of June/July 2007 since he was in need of scrap he checked certain websites including Alibaba.com. There he came across the number of respondent No.4 Abhinav Goel who introduced the petitioner with respondents No.1 to 3 and that they were dealers in ferrous and non-ferrous scrap metals. Respondent No.2&3 representing to be partners of respondent No.1 agreed to supply H.R./C.R. cutting 250.m.t. @ `18,700/- m.t. in a lot of 100 m.t. The delivery of the aforesaid items were agreed to be made within 3 days of receiving the cheque amount. Believing the representation of the respondents, the complainant paid the amount in advance by three cheques amounting to `2 lakhs, `29 lakhs and `19 lakhs drawn on HDFC Bank,

Ashok Niketan, Vivek Vihar, Delhi. The cheques of `29 lakhs and `2 lakhs were encashed on 11th February, 2008 and that of `19 lakhs on 12th February, 2008. Despite representation and pursuing with the respondents no goods were supplied. The complainant/ petitioner even went to Nagpur to pursue the matter but the respondents again and again asked him to wait. The complainant gave a legal notice but received no reply and then filed a complaint before the Police for registration of FIR. FIR having not been registered he approached the learned ACMM by filing a criminal complaint and simultaneously seeking directions under Section 156(3) Cr.P.C. The application of the petitioner/ complainant seeking directions under Section 156(3) Cr.P.C. was dismissed on the ground that the evidence was available with the petitioner and the learned MM proceeded with the complaint and examined witnesses of the petitioner/ complainant.

2. Vijay Kumar appearing as CW-1deposed that on 7th February, 2008, Mr. Gopal and Mr. Rajesh Kumar along with Mr. Abhinav Goel came to his office and discussed the matter with him and his partner Shri Ashok Kumar Garg. After discussion they agreed to purchase the following materials:- No.1 baby coils 200 m.t. @ 28,700/- per m.tonnes and No.2 H.R./C.R. cuttings 250 m.t. @ `18,700/-. They told that minimum quantity of 100 m.t. each will be supplied as first lot for which they had to make advance payment along with `2,00,000/- security for balance quantity. Since they were interested in the deal they paid the amount through three HDFC bank cheques from their firms account `29,00,000/- plus `19,00,000/- plus `2,00,000/- totalling to `50,00,000/- which had been cleared on 11.2.2008 and 12.2.2008 as per copy of bank statement Mark 'A'. They assured us that

the supply will commence within three days after payment. For remembrance they draw an agreement on the letter head of M/s. Satnam Sales Corp. which is Ex.CW1/A. He deposed about his visit to Nagpur but delivery was not supplied.

3. On pursuing the complaint and the statements of the witnesses learned Metropolitan Magistrate vide order dated 5th September, 2009 summoned the respondents No.1 to 4 herein for offences punishable under Section 420/406/120B/506 IPC. Respondents No.1 to 3 filed a revision petition before the learned ASJ admitting that they had entered into a transaction with the petitioner for supply of 200 metric tonnes of baby coil (2 MM to 2.50 MM thick) 2500 metric tonnes of H.R./C.R. cuttings. The respondents even admitted the encashment of three cheques mentioned in the complaint, however the plea of the respondents herein was that when the agreement was entered into between the petitioner/ complainant and the respondents, simultaneously the parties entered into another agreement requesting the respondents to prepare bills in the name of S.M. Trading Corporation, E-223, Kavi Nagar Industrial Area, Ghaziabad because that was a sister concern of the petitioner. This fact was refuted by the petitioner/ complainant in his reply before the learned ASJ and he claimed that this document was a forged and fabricated document. On the basis of this document and other documents showing supply of deliveries to S.M. Trading Corporation, the learned ASJ came to the conclusion that no case was made out against the respondents for offences punishable under Sections 406/420 IPC and allegations amounted to a civil dispute and hence the order of summoning the respondents for the aforementioned offences was set aside.

4. The short issue in the present petition is whether on the strength of disputed documents placed before the learned ASJ by the accused, the order of summoning could have been set aside. Admittedly the documents relied upon by the learned ASJ to come to the conclusion that supplies had been made to S.M. Trading Corporation which was the sister concern of the petitioner were not placed by the complainant along with his complaint. The authenticity of these documents was disputed by the petitioner/complainant before the learned ASJ. The documents were not of unimpeachable character which the learned ASJ could have looked into.

5. The Supreme Court in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & Ors. AIR 1976 SC 1947 while considering the scope of interference by a revisional Court against an order of summoning illustratively noted the grounds on which order of summoning passed by the Magistrate can be quashed as under:

"5. Mr. Bhandare laid great stress on the words "the truth or falsehood of the complaint" and contended that in determining whether the complaint is false the Court can go into the question of the broad probabilities of the case or intrinsic infirmities appearing in the evidence. It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to

examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Sections 202 of the CrPC which culminates into an order under Sections 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

6. Thus the impugned order of the learned ASJ setting aside the order of summoning is beyond jurisdiction and is consequently set aside.

7. Parties will appear before the learned Metropolitan Magistrate on 19 th January, 2015.

8. Petition is disposed of.

(MUKTA GUPTA) JUDGE December 15, 2014 'ga'