Criminal writ petition challenging summons under Sections 420, 406 IPC. Court held facts disclose cause of action at Indore. Jurisdiction to review Magistrate lies with MADH. Pradesh High Court. Petition dismissed.
Petition dismissed. Interim relief vacated. Rule discharged with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[1]
INTHE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL WRIT PETITION NO.896 OF 2004
1. Mr. Manish Mehta of
Bombay, Indian Inhabitant,
2. Mr. Ashish Mehta of
Bombay, Indian Inhabitant,
3. Mr. Vinod Jaiswal
4. Mr. Sunil Koregaonkar
5. M/s. Free India Assurances
Services Ltd., a Company
incorporated under the
provisions of the Companies
Act, all having their office
at Babu Bhavan, Balasheth
Madhukar Road,
Elphinstone Road Station,
Mumbai 400 013. .... Petitioners
- Versus -
1. The State of Maharashtra
2. Smt. Meena Sharma w/o Satish
Sharma, adult, Indian
Inhabitant residing at 70,
Lodhi Mohalla, Indore,
Madhya Pradesh. .... Respondents
Shri A.M. Saraogi for the Petitioner.
Shri D.S. Mhaispurkar, Addl. Public
Prosecutor, for the Respondent No.1.
Shri S.V. Marwadi for the Respondent
No.2.
CORAM: R.M.S. KHANDEPARKAR &
P.V. KAKADE, JJ.
DATED: MARCH 24, 2005
ORAL JUDGMENT (Per R.M.S.Khandeparkar, J.):
[2]
1. Heard. Rule. By consent, the rule is made
returnable forthwith. The petitioner challenges the
summons issued under Section 420 or 406 read with
Section 120-B of the Indian Penal Code (IPC) by the
Addl. Chief Judicial Magistrate at Indore. The
challenge to the summons issued by the learned
Magistrate on the complaint filed by the respondent No.2
is two-fold. Firstly, that the Court of the Magistrate
at Indore has no jurisdiction to entertain the complaint
as no cause of action for entertaining such complaint
arose at Indore, and secondly, that the complaint filed
by the respondent No.2 does not disclose any offence of
the nature punishable under either Section 420 or
Section 406 of the IPC under which the summons has been
issued.
2. The learned Advocate for the petitioner, placing
reliance in the decision of the Apex Court in the matter
of Navinchandra N. Majithia v. State of Maharashtra,
reported in AIR 2000 SC 2966 submitted that apart from
the bare allegations in the complaint, the documents
which are produced along with the complaint nowhere
disclose any transaction between the petitioner and the
respondent No.2 so as to give rise for any cause of
action within the jurisdiction of the Chief Judicial
Magistrate at Indore to entertain the said complaint.
The grievance of the respondent No.2 being in the nature
[3]
of non-compliance of the obligations by the principal
towards its agent, it is purely a civil liability, if at
all there could be said to be any liability of the
petitioner towards the respondent No.2, but in no case
the complaint discloses any fact which could give rise
to any offence punishable under Section 406 or Section
420 of the IPC. The complaint, on the face of it,
discloses an artificially created cause of action to
justify the complaint at the Indore Court and the same
is apparent from the documents annexed to the complaint
and therefore this is a fit case for quashing the
summons issued to the petitioner as well as the
complaint filed by the respondent No.2.
3. The Apex Court in Navinchandra Majithia’s case
(supra), in paras 13 and 14 thereof, to which attention
was drawn by the learned Advocate for the petitioner,
had held thus:-
"13. We make it clear that the mere
fact that FIR was registered in a
particular State is not the sole
criterion to decide that no cause of
action has arisen even partly within the
territorial limits of jurisdiction of
another State. Nor are we to be
understood that any person can create a
[4]
fake cause of action or even concoct one
by simply jutting into the territorial
limits of another State or by making a
sojourn or even a permanent residence
therein. The place of residence of the
person moving a High Court is not the
criterion to determine the contours of
the cause of action in the particular
writ petition. The High Court before
which the writ petition is filed must
ascertain whether any part of the cause
of action has arisen within the
territorial limits of its jurisdiction.
It depends upon the facts of each case.
14. In the present case, a large number
of events have taken place at Bombay in
respect of the allegations contained in
the FIR registered at Shillong. If the
averments in the writ petition are
correct then the major portion of the
facts which led to the registering of
the FIR have taken place at Bombay."
(emphasis supplied)
The above ruling of the Apex Court, therefore, clearly
lays down the law that merely because a party chooses to
[5]
create a fake cause of action or concocts events in
order to justify the filing of the complaint in a
particular Court of Magistrate, it could be necessary
for the Magistrate to ascertain from the facts disclosed
whether really the same have happened within the
territorial limits of his jurisdiction and decide about
the maintainability of the complaint in such Court of
the Magistrate. When the maintainability of such
complaint on account of lack of territorial jurisdiction
is challenged before the High Court, even when the Court
of Magistrate lies in a different State, the High Court
would be justified in ascertaining whether the cause of
action has really arisen within the territorial limits
of the jurisdiction of the concerned Magistrate, albeit,
this would depend upon the facts of each case. At the
same time, it is settled principle of law that when
there is a challenge thrown to the FIR or the complaint,
the person challenging either the FIR or the complaint
cannot be heard on the basis of the materials extraneous
to such FIR or the complaint. The challenge will have
to be considered bearing in mind the facts narrated in
the FIR and the complaint and there cannot be a Court
inquiry as regards the genuineness of the allegations.
{vide: Mahavir Prashad Gupta and another v. State of
National Capital Territory of Delhi and others (2000) 8
SCC 115}.
[6]
4. Bearing in mind the law laid down by the Apex Court
on the relevant issue, if one peruses the complaint
filed by the respondent No.2 in the Court of the
Magistrate at Indore, it refers to the allegation that
on 11-11-2000 a seminar was arranged on behalf of the
petitioner at Aaram Hotel, Gandhi Hall, Indore and an
advertisement in that regard was published through the
daily newspapers under the caption "Earn Rs.5000/- to
Rs.8000/- per week. No ceiling, no target. Part-time
job." It is the case of the respondent No.2 that
pursuant to the said advertisement, she attended the
seminar on the relevant day, time and place and she was
informed about the scheme which was being promoted by
some of the persons named as the accused in the
complaint and she was also informed about the benefits
which can be derived from the scheme, and accordingly
she joined the said scheme, pursuant to which she
received certain commission from February, 2001 till
June, 2001. She was also issued with a certificate of
merit on 25-3-2001 in relation to the services rendered
by her for the promoting the business of Free India
Concept, stated to have been floated by the petitioner.
Her further contention in the complaint is that she had
applied for renewal of her services on payment of
Rs.3300/- on 21-11-2001 by demand draft No.574754,
issued on the State Bank of India, Indore. It is her
further contention that the accused persons from 1 to 5
[7]
and 7 and 8 intentionally and by entering into a
conspiracy denied the commission amount payable to the
complainant and illegally diverted it to the name of the
accused No.6. She has sought to rely upon the booklet
of Free India Concept, form of Free India Concept,
receipt of the amount of Rs.2500/- deposited by her on
23-11-2000, the identity letter issued to her, the
statements of the commission amount received by her,
certificate of merit, the record of information obtained
through internet, etc., and has further stated in the
complaint that the commission amount was paid to the
complainant at Indore and the complainant did her
agency’s business as the agent of the petitioner-company
in Indore city.
5. The averments made in the complaint undoubtedly
refer to certain representation made to the respondent
No.2 on behalf of the petitioner-company and further
rendering of services of commission agent by her at
Indore, and further application for renewal of such
services to be rendered by the complainant, failure on
the part of the petitioner to pay the commission,
diversion of the commission amount to the account of the
accused No.6 which was actually payable to the
complainant on account of the services rendered by her
at Indore, part-payment of the commission towards the
services rendered being paid in Indore, etc. All these
[8]
facts apparently disclose that the grievance of the
complainant-respondent No.2 is in relation to the acts
which have occurred at Indore and even the payments
having been made at Indore. The complaint, on the face
of it, therefore, undoubtedly discloses allegations
which could be the subject-matter of adjudication before
a Magistrate at Indore. The contention of the learned
Advocate for the petitioner, therefore, that the
complaint on the face of it nowhere discloses any act
which could justify the filing of the complaint at
Indore cannot be accepted. However, his further
contention is that those allegations are not sufficient
to disclose the offence punishable either under Section
406 or Section 420 of the IPC and the averments in the
complaint have been made merely to concoct the cause of
action to justify the filing of the complaint at Indore.
In that regard, attention has been drawn to the
pleadings in the petition.
6. Perusal of the petition, however, inevitably
discloses clear averments to the effect that the
respondent No.2 happened to be a resident of Indore and
she had opted to join the concerned scheme of the
petitioner by filing the necessary documents. The
petition also contains the averment to the effect that
the respondent No.2 had started acting contrary to the
interest of the company of the petitioner and that
[9]
therefore her services were terminated. The annexures
to the petition also includes the copies of the
statements regarding the details of the payments stated
to have been relied upon by the respondent No.2 in the
complaint itself. It discloses cheques having been
issued on ICICI Bank Account No.714 in relation to the
commission amount stated to have been paid to the
respondent No.2. The petition, however, nowhere
discloses that the field of operation of the respondent
No.2 pursuant to the joining of the scheme and for which
the commission was paid to the respondent No.2 to be
beyond the city of Indore or beyond the jurisdiction of
the territorial limits of the Magistrate at Indore
inspite of the fact that there is a clear averment in
the complaint that she was rendering the services in the
city of Indore and on that count the commission was
being paid to her. Undoubtedly, it is the contention of
the learned Advocate for the petitioner that the
commission was paid under cheques drawn on the ICICI
Bank by the partner of the petitioner at Mumbai.
However, there is nothing on record to disclose that the
said cheques were encashed or transacted at any place
beyond the territorial limits of the jurisdiction of the
Magistrate at Indore. Obviously, the amounts under
those cheques might have been paid within the
territorial limits of the said Court of the Magistrate
at Indore, as has been claimed by the respondent No.2.
[10]
It is the grievance of the respondent No.2 that she had
already paid the renewal amount for continuation of the
said commission on the services to be rendered by the
respondent No.2. Apart from claiming that her services
have been terminated, nothing has been stated by the
petitioner in the petition as regards the return of the
renewal amount stated to have been paid by the
complainant under the demand draft to the petitioner,
nor it is the case of the petitioner that the said
amount was not received by the petitioner. In the back
ground of all these facts, which are necessarily to be
considered, as was observed by the Apex Court in
Navinchandra Majithia’s case, in order to ascertain
whether the cause of action had arisen within the
territorial limits of the jurisdiction of the Court of
Magistrate in which the complaint is filed, the above
facts would disclose that it is not possible for this
Court to arrive at any conclusion, as sought to be
contended on behalf of the petitioner that there is any
concoction of the cause of action to enable the
respondent No.2 to file a complaint at Indore.
7. Whether the facts stated in the complaint are
sufficient to disclose the offence punishable under
Section 406 or Section 420 of the IPC or whether those
facts would disclose any other offence or that the facts
are not sufficient for disclosing any offence under the
[11]
IPC, is a matter to be decided primarily by the
Magistrate before whom the complaint is filed or by the
Court to which the Magistrate is subordinate to.
Undoubtedly, the Court of the Magistrate at Indore
cannot be said to be a Court subordinate to this Court
for the purpose of revisional or supervisory
jurisdiction over the Magistrate presiding over that
Court at Indore as the said Court would be a subordinate
Court to the High Court of Madhya Pradesh and not of the
Bombay High Court in that regard. Undoubtedly, when
there is concoction of cause of action, certainly the
ruling of the Apex Court in Navinchandra Majithia’s case
would be attracted but in a case where prima facie some
sort of relationship between the parties or some sort of
dealing between the parties are disclosed and same could
give rise to dispute leading to criminal liability of
one of the parties, certainly it would be within the
domain of the Magistrate of the area wherein the offence
is stated to have been committed and in case of any
impropriety or illegality by such Magistrate while
taking cognizance of such offence or passing any order
in that regard, the Court to which such Court of the
Magistrate is subordinate to will be the Court competent
to exercise the jurisdiction either in the nature of
revisional powers or supervisory powers. Being so, it
would not be appropriate for this Court to entertain any
grievance as regards the impropriety or illegality
[12]
committed by the Magistrate at Indore while taking
cognizance of the offence as the jurisdiction in that
regard vests in the High Court of Madhya Pradesh.
8. For the reasons stated above, therefore, there is no
case for interference in the impugned order and hence
the petition is dismissed. Interim relief granted
earlier stands vacated. The rule is discharged with no
order as to costs.
9. At this stage, the learned Advocate for the
petitioner prays for stay of the warrant which has been
issued pursuant to the failure on the part of the
petitioner in answer to the summons issued by the
Magistrate at Indore. The execution of the order shall
stand suspended for a period of four weeks from today.
(R.M.S. Khandeparkar, J.)
(P.V. Kakade, J.)
3 issues framed by the court
Whether the High Court has jurisdiction to quash the summons issued by the Magistrate at Indore challenging territorial jurisdiction.
Whether the complaint filed by respondent No.2 discloses an offence punishable under Sections 420 or 406 of the IPC.
Whether a case for interference in the impugned order is made out.
Colour shows how this judgement treated each authority
Navinchandra N. Majithia v. State of MaharashtraReferred¶13
Navinchandra N. Majithia v. State of Maharashtra, AIR 2000 SC 2966 · Who else cites this
Mahavir Prashad Gupta and another v. State of National Capital Territory of Delhi and othersReferred¶27
Mahavir Prashad Gupta and another v. State of National Capital Territory of Delhi and others (2000) 8 SCC 115 · Who else cites this
Mr. Manish Mehta
Mr. Ashish Mehta
Mr. Vinod Jaiswal
Mr. Sunil Koregaonkar
M/s. Free India Assurances Services Ltd.
The State of Maharashtra
R.M.S. Khandeparkar
P.V. Kakade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court