Hariram vs Harnarayan
2024 Latest Caselaw 15749 MP

Madhya Pradesh High Court

Hariram vs Harnarayan on 28 May, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                                1
                                                       MCRC No.38325/2022


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                       BEFORE
    HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 28th OF MAY, 2024
          MISC. CRIMINAL CASE No. 38325 of 2022
BETWEEN:-
HARIRAM S/O LATE SHRI BABULAL RAIKWAR, AGED
ABOUT 61 YEARS, OCCUPATION: JOB R/O HARSHMAU
RAILWAY STATION NIWADI, POLICE STATION
NIWADI, DISTRICT TIKAMGARH NOW DISTRICT
NIWADI (MADHYA PRADESH)

                                                         .....APPLICANT
(BY SHRI SOURABH SINGH THAKUR - ADVOCATE)

AND

HARNARAYAN S/O LATE SHRI GANU RAIKWAR,
AGED ABOUT 56 YEARS, OCCUPATION: FISHERIES
INSPECTOR, AGRA (U.P.) R/O AVAS 101 RAILWAY
STATION ROAD, INDIVAR NAGAR BARUASAGAR,
POLICE STATION BARUASAGAR, DISTRICT JHANSHI
(UTTAR PRADESH)


                                                      .....RESPONDENT
(BY SHRI JAGDISH PRASAD SINGROL - ADVOCATE)
      This application coming on for admission this day, the court passed

the following:

                                    ORDER

This application under Section 482 of Cr.P.C. has been filed seeking the following relief:

"It is, therefore, prayed that this Hon'ble Court may be pleased to quash the order dated 16/07/2022, passed in Criminal Revision No. 05/2020, by Smt. Suchita Shrivastava, 2nd Additional Session Judge, Niwadi, District

Tikamgarh (M.P.) and an order dated 05/10/2019 passed by the J.M.F.C Niwadi, District Tikamgarh (M.P.) be upheld and also direct the trial court to proceed with complaint case for an offence u/s 420 of IPC, in the interest of justice.

2. It is the case of the applicant that he had filed a complaint under Section 200 of Cr.P.C. alleging commission of offence by respondent under Sections 420, 467, 468, 471, 506-B of IPC on the allegation that he lives in village Harshmau and non-applicant being his brother-in-law used to visit his house. On 27.12.1997 non-applicant came to his house and told applicant to invest Rs.10,000/- in Kanyadan Scheme of U.P. Forest Company and as per the scheme he would repay Rs.8,25,000/- after 20 years. When complainant asked for surety of his investment then non-applicant assured and took entire responsibility. Accordingly, applicant gave money to non-applicant, who gave a receipt signed by him in presence of witnesses. Thereafter, applicant demanded Rs.8,25,000/- after 20 years towards maturity amount of Kanyadan Scheme of U.P. Forest Company. When amount was not repaid then applicant obtained an information regarding the company and he came to know that no such scheme is in existence and non-applicant by using forged and fabricated documents had procured money from applicant. Applicant had also submitted a complaint to police authorities but no action has been taken. Accordingly, he filed a complaint case. The trial Magistrate on the basis of evidence and documents available on record took cognizance for offence under Section 420 of IPC and process was issued.

3. Being aggrieved by said order, non-applicant preferred a revision before the Additional Sessions Judge, Tikamgarh challenging the order

dated 05.10.2019. By impugned order dated 30.12.2019 the Revisional Court has set aside the order of taking cognizance and has remanded the matter back to the Magistrate.

4. Challenging the order passed by Court below, it is submitted by counsel for applicant that applicant and his witnesses have specifically stated that an amount of Rs.10,000/- was given by applicant to non- applicant and a receipt was also executed. The complainant has also relied upon the Teak Certificate issued by U.P. Forest Company Limited which according to complainant was given by non-applicant. The Revisional Court has set aside the order of cognizance on the ground that applicant has not examined the attesting witnesses of receipt and Magistrate should also have conducted an inquiry regarding Teak Certificate issued by U.P. Forest Company Limited. It is submitted that when a document is not required to be attested then examination of attesting witnesses is not required. Furthermore, witnesses have already stated that an amount of Rs.10,000/- was given by applicant to non- applicant in their presence and non-applicant had assured that an amount of Rs.8,25,000/- would be maturity amount after 20 years. Thus, sufficient cause was made out for Trial Court to take cognizance. Deep and roving inquiry at the stage of taking cognizance is not required.

5. Per contra, counsel for respondent has supported the order passed by Revisional Court.

6. Heard learned counsel for parties.

7. The Revisional Court has set aside the order passed by Trial Court on the ground that Trial Court should have examined the attesting witnesses of receipt.

8. Counsel for respondent could not point out as to whether attestation of receipt is required or not?

9. Section 72 of Evidence Act provides that an attested document not required by law to be attested may be proved as if it was unattested and section 71 of Evidence Act provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. Furthermore, as per Section 64 of Evidence Act, documents must be proved by primary evidence except in the cases mentioned in Section 65. Thus, when receipt was not required to be attested, then it can be proved like an unattested document. Therefore, examination of attesting witnesses of receipt was not required.

10. The question is as to whether respondent had allured the applicant to invest Rs.10,000/- in U.P. Forest Company Limited on an assurance that after 20 years Rs.8,25,000/- would be returned as a maturity amount or not?

11. If the Teak Certificate given by non-applicant is found to be forged, then it would be an additional evidence against non-applicant.

12. The word "sufficient cause" has been explained by Supreme Court in the case of Shivjee Singh Vs. Nagendra Tiwary and Others reported in (2010) 7 SCC 578 as under:-

"18. The expression "sufficient ground" used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. This interpretation of the provisions contained in Chapters XV and XVI CrPC finds adequate support from the judgments of this Court in Ramgopal Ganpatrai Ruia v. State of Bombay [AIR 1958 SC 97 : 1958 Cri LJ 244 :

1958 SCR 618], Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar [AIR 1960 SC 1113 : 1960 Cri LJ 1499 : (1961) 1 SCR 1], Chandra Deo

Singh v. Prokash ChandraBose [AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 : (1964) 1 SCR 639] , Nirmaljit Singh Hoon v. State of W.B. [(1973) 3 SCC 753 : 1973 SCC (Cri) 521], Kewal Krishan v. Suraj Bhan [1980 Supp SCC 499 : 1981 SCC (Cri) 438], Mohinder Singh v. Gulwant Singh [(1992) 2 SCC 213 : 1992 SCC (Cri) 361] and Chief Enforcement Officer v. Videocon International Ltd. [(2008) 2 SCC 492 : (2008) 1 SCC (Cri) 471].

19. In Chandra Deo Singh v. Prokash Chandra Bose [AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 :

(1964) 1 SCR 639], it was held that where there was prima facie evidence, the Magistrate was bound to issue process and even though the person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by an appropriate forum at an appropriate stage. It was further held that the issue of process can be refused only when the Magistrate finds that the evidence led by the complainant is self-

contradictory or intrinsically untrustworthy.

20. In Kewal Krishan v. Suraj Bhan [1980 Supp SCC 499 : 1981 SCC (Cri) 438], this Court examined the scheme of Sections 200 to 204 and held: (SCC p. 503, para 10) "10. ... At the stage of Sections 203 and 204 of the Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is 'sufficient ground for proceeding' against the accused. At this stage, the Magistrate is not to weigh the

evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges."

21. The aforesaid view was reiterated in Mohinder Singh v. Gulwant Singh [(1992) 2 SCC 213 : 1992 SCC (Cri) 361] in the following words: (SCC p. 217, para 11) "11. ... The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full-

dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence

adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry."

(emphasis supplied)

22. The use of the word "shall" in the proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the Magistrate concerned of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word "all" appearing in the proviso to Section 202(2) is qualified by the word "his". This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process."

13. Considering the totality of facts and circumstances of the case, this Court is of considered opinion that Revisional Court committed a material irregularity by setting aside the order of cognizance and directing the Trial Court to decide the question of taking cognizance afresh.

14. Accordingly, order dated 16.07.2022 passed by Second Additional Sessions Judge, Niwadi, District Tikamgarh in Criminal Revision No.5/20 is hereby set aside.

15. Trial Magistrate is directed to proceed with the complaint.

16. The application succeeds and is hereby allowed.

(G.S. AHLUWALIA) JUDGE vc

VARSHA CHOURASIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH,

CHOUR 2.5.4.20=f460d4685ef5a4622238f0b 59b78c2407fd3ee2f619d9ce8e428c 224c23ec8ac, postalCode=482001, st=Madhya Pradesh, serialNumber=A0506346908D8FDC

ASIYA 4A2DA9968A85B01E1D95EF7D1630 553560798626817C4267, cn=VARSHA CHOURASIYA Date: 2024.05.30 17:14:21 +05'30'