Petitioners challenging the framing of a cheating charge filed by a tyre dealer sought discharge via writ petition under Article 227 and Section 482 CrPC. The High Court rejected the plea, holding that a prima facie case existed for the charge.
Petition dismissed; interim stay vacated; framing of charge against petitioners is upheld.
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.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2619 OF 2011
MR.SYED JALAL JALALI AND OTHERS
)...PETITIONERS
V/s.
MR.PARVINDER SINGH DHIGRA AND ANR.)...RESPONDENTS
Mr.A.P. Mundargi Sr.Advocate i/b. Mr.S.G.Abbas Kazmi Advocate for the Petitioners. Mr.Virendra H. Parikh Advocate for the Respondent No.1. Mr.J.P.Kharge APP for State.
CORAM: A.M.THIPSAY, J. DATE : 20th APRIL, 2012.
ORAL ORDER :
Rule. By consent, rule made returnable forthwith. Respondents waive service. By consent, heard forthwith.
2 The petitioners are the accused in C.C.No.178/SW/2005, pending before the Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon. The said case arose on account of a complaint filed by the respondent no.1 herein, alleging commission of an offence punishable under Section 420 of Indian Penal Code (IPC) by the petitioners. After the evidence before charge was recorded, the petitioners sought discharge contending in substance, that no prima facie case of cheating was made out. But the Learned Magistrate was of the view that there were ' sufficient grounds' to proceed with the complaint ' and that a case for framing of charge had been made out. He therefore, by his order dated 18.12.2010, rejected the prayer for discharge and directed framing of charge against the petitioners, in respect of an offence punishable under Section 420 of IPC.
Being aggrieved by the said order, the petitioners approached the court of Sessions for Greater Bombay, invoking its revisional jurisdiction. The Learned Additional Sessions Judge who heard the matter, was of the view that the order passed by the Learned Magistrate was proper and legal. He therefore,
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dismissed the revision application.
Being aggrieved by the said order passed by the court of Sessions, the petitioners have approached this court, invoking its constitutional jurisdiction under Article 227 of the Constitution of India and its inherent jurisdiction under Section 482 of Code of Criminal Procedure (Cr.P.C.).
3 I have heard Mr.A.P.Mundargi, the learned counsel for the petitioners. I have heard Mr.Virendra Parikh, the learned counsel for the respondent no.1. I have also heard Mr.J.P.Kharge, the learned APP for the State – the respondent no.2.
4 It is submitted by Mr.Mundargi, the learned counsel for the petitioners, that taking the averments made in the complaint at face value and considering the evidence adduced before charge as it is, without trying to evaluate the same, no offence can be said to have been committed by the petitioners. According to him, the averments in the complaint and the evidence, even if taken at face value and accepted in entirety, do not spell out any criminal offence. He submitted that it is apparent that there is only a civil dispute between the parties. According to him, the order passed by the Learned Additional Chief Metropolitan Magistrate and the court of Sessions both, are patently erroneous and are required to be set aside, in the interest of justice.
5 Mr.Virendra Parikh, the learned counsel for the respondent no.1, on the other hand, challenged the very maintainability of the present petition. According to him, the petitioners having availed of the remedy of the revision, by approaching the court of Sessions, cannot again reagitate the same issues before this court. According to him, by styling the petition as one under Article 227 of the Constitution and under Section 482 of Cr.P.C., the petitioners cannot be permitted to circumvent the bar under Section 397(3) of the Code. According to him, even on merits, there was clearly, a prima facie case against the Petitioners and that, certainly it was not a fit case where the accused could be discharged.
A number of authoritative pronouncements of the High Courts and of the Supreme Court of India, have been relied upon by the learned counsel, in support of
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their respective contentions. I have taken into consideration the principles enunciated in these pronouncements, which are well recognized.
6 With the assistance of the learned counsel, I have gone through the complaint and the entire notes of evidence, recorded in C.C.No.178/SW/2005, copies of which have been made available to the Court. I have also been taken through the order passed by the Learned Magistrate, as well as the order passed by the court of Sessions, that have been challenged by the present petition.
7 For the sake of convenience and clarity, the respondent no.1 shall hereinafter be referred to as the “complainant” and the petitioners as “the accused.”
8 The case as made out in the complaint, is, in brief, that the complainant had been dealing in tyres and tubes, in the name and style of Ajit Tyres and Trading Company, a proprietory concern, since the year 1993. That, he knows the accused who are in transport and shipping business, since prior to 1997. That, the complainant had some business dealings with the accused, but as the accused withheld certain payments due and payable to the complainant, the complainant was compelled to lodge a report with the police, and it is only after such report was lodged, that the accused made the payments. Because of this, the complainant had stopped business dealings with the accused. That, thereafter, in December 2002, the accused no.2 contacted the complainant and requested him to help him by resuming the supply of tyres as per his needs. Because of the earlier experience, the complainant was reluctant to have business transactions with the company of the accused, but the accused no.2 expressed regrets for whatever had happened in the past and represented to the complainant that there won't be any delay in payment of any bills thereafter. That, on the basis of such representations and assurances - i.e:that prompt payment of bills would be made, the complainant was induced to start supplying tyres to the accused. The complaint then gives some details of the business transactions between the complainant and the accused; and states that at a particular stage, the accused stopped making bill wise payments, deviating from the practice that was going on till the year 2004. The complainant had started supplying to the accused from two of his firms viz: ' Tyre care ' and ' Ajit International ,' and the accused had been informed about this arrangement in the beginning of the
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year 2004. By a letter dated 30.10.2004 however, the accused denied that they owed anything to the said two concerns of the complainant, but agreed to settle the dues to Ajit Tyre Trading Company, after deducting a sum of Rs.2,58,000/- and odd. Later on, however, the accused denied that they owed anything even to Ajit Tyre Trading Company and on the contrary, claimed from the complainant an amount of Rs.33,34,685/- alleging that the complainant had overcharged them. According to the complainant, the said conduct of the accused revealed that they had deceived him by false and dishonest representations and dishonestly induced him to part with the tyres of the aggregate value of Rs.48,13,963/-, without having any intention to pay for the same.
9 Mr.Mundargi, the learned counsel for the accused, referred to the evidence adduced before the Learned Magistrate and pointed out some part thereof, suggesting that the transaction was a normal business transaction and the dispute was entirely of a civil nature. Apart from this, he mainly contended that if the evidence before charge is considered, there are allegations only against the accused no.2 and that therefore, in any case, the framing of charge against the other accused was not justified.
10 Mr.Virendra Parikh, the learned counsel for the Complainant on the other hand contended that the evidence made out a prima facie case of cheating, by all the accused. He submitted that the business transactions were with the company of the accused and that all the accused were Directors of the said company. He submitted that there is every indication that the accused no.2 was acting for and on behalf of all the accused, and that the wrongful gain had been made by the company of the accused persons and consequently, by all the accused persons.
11 In the view that I am taking, it would be neither proper nor necessary to discuss the merits of the rival contentions, which undoubtedly, are not entirely without factual shades. It is because in exercise of the jurisdiction under Article 227 of the Constitution, this court would not go in the disputed questions of facts by evaluating the evidence.
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12 It is well settled that the power conferred upon this court by Article 227 of the Constitution, is very wide and extensive. But the exercise of such power is discretionary. It has to be exercised most sparingly and for the purpose of keeping subordinate courts within the bounds of their authority. A petition under Article 227 cannot be treated as an appeal or even as an application for revision. As regards the inherent powers of the High Court also, it is well settled that the same are to be used to prevent abuse of the process of any court or otherwise to secure the ends of justice. In the exercise of this jurisdiction, the High Court does not embark upon a detailed inquiry and does not re-appreciate and re-evaluate the evidence, with the object of ascertaining whether the view taken by the subordinate court is correct.
13 The first contention of the accused is that the evidence before charge, as adduced, even if taken at face value and accepted in entirety, does not constitute any offence punishable under Section 420 of IPC. I shall briefly discuss the merits of this contention at a later stage.
14 The other contention put forth before this court is that the Magistrate had abruptly closed the cross examination of the complainant. It is submitted that the advocate for the accused was unable to remain present for such cross examination, as he was attending a important case which was of international importance and had attracted great publicity. It is submitted that because of the unavailability of his Advocate, great prejudice has been caused to the accused, as the opportunity to cross examine the complainant was lost. In this regard, the reply of the complainant is that this was not a legal or valid ground for challenging the impugned order. It is pointed out that the cross examination was going on for a period of more than two years. It is argued that even thereafter, i.e, after the crossexamination was closed, no application for recalling the complainant was made by the defence and instead, an application for discharge was made. Indeed, since no application for recalling the complainant was made, and an application for discharge was, instead, made, it is clear that the accused were quite satisfied about the state of evidence on record. The action of applying for discharge suggests that at least that point, the accused did not perceive any prejudice having been caused to them. Under these circumstances, not much importance to this contention can be given, even if the aspect as to how far such a contention would be tenable in law, is
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ignored.
15 It is submitted by Mr.Mundargi that the evidence brought on record shows that an aggregate amount of Rs.7,81,75,383/- had been paid by the accused to the complainant. On the basis of this, it is contended that if the accused had a dishonest intention from the inception, they would not have paid such a huge amount to the respondents. In reply, it is contended by Mr.Virendra Parikh, that the very fact that the accused had taken a somersault and claimed that some amount was due to them from the complainant, is a clear indication of dishonest intention.
16 In my opinion, when commercial transactions involving huge sums take place, the mere fact that substantial amounts have been paid, though what has not been paid, is also considerable, will not negative the theory of dishonest intention. It would depend on the facts of each case; and certainly if such an aspect is to be treated as decisive in a given case, it would need examination and consideration in the light of the other circumstances, as may be available for supporting or refuting such an inference.
17 Mr.Mundargi also contended that since the company had not been made an accused, the accused persons cannot be prosecuted, only because they are the Directors of the company. In this context, on behalf of the complainant, it is submitted that the accused are not being prosecuted on the basis that they are the Directors of the company in question, but that they are being prosecuted on the allegations that they are personally liable for the offence of cheating and that they themselves had the requisite mens rea so as to constitute their acts into the offence of cheating.
18 In the view that I am taking, it would be neither proper nor necessary to discuss these contentions in depth. It is because the real question that is required to be determined is whether the order passed by the Learned Magistrate and that passed by the court of Sessions, is patently illegal, improper, based on no material, and therefore needs to be interfered with, in the extraordinary jurisdiction of this court.
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19 How the matter is to be approached at, at the stage of framing of charge, is well settled. Though a number of authoritative pronouncements have been referred to by the learned counsel, it is not necessary to make any reference to them, as the legal position in that regard, is well settled. It is well settled that at the stage of framing of charge, the court is not to meticulously evaluate or assess the evidence, as is required to be done at the final stage, before deciding whether the charges are proved or not. The court also cannot hazard a guess at that stage, as to whether the trial would ultimately result in conviction. Though the provisions relating to discharge, as appearing in Section 227, 239 and 245 of Cr.P.C. are not identical, and though different phraseology has been used in these sections, in practice, there is no real distinction or difference between the tests which the courts are required to apply at that stage. The requirement to make out a prima facie case is certainly there, but the existence of such a prima facie case is not to be judged by undertaking an elaborate inquiry into the materials produced before the court and / or minutely appreciating the same. The standard of proof that would be required at the final stage, is not to be applied at the stage of framing of charge. If on the consideration of the material placed before the court , there would be a ground for 'presuming' that the accused has committed an offence, charge should be framed against the accused. It is also well settled that the disputed facts put forth by the accused, by giving suggestions to the prosecution witnesses in the cross-examination and by advancing arguments, cannot be finally adjudicated at that stage, for discarding the prosecution evidence. It is also well settled that though at the ultimate stage, the accused would be entitled for the benefit of any doubt, which may arise about their guilt, at the stage of framing of charge, even grave suspicion based on the material placed before the court, that the accused might have committed the offence in question, would be sufficient for framing of charge .
20 Both the courts below have taken a view that a case for framing of charge was made out, and that too, against all the accused.
21 The order passed by the court of Sessions indicates that all the contentions put forth by the accused persons were taken into consideration and dealt with in the said order. In paragraph 28 of his order, the Learned Judge has
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discussed the principles of law with respect to the framing of charge, and, by and large, the principles have been stated quite rightly.
22 Though this appears to be a case where much can be said by both the parties, it is not possible to successfully contend that on the material produced, before the Learned Magistrate, there was no scope for presuming that the accused persons had committed an offence punishable under Section 420 of IPC. The question is not whether any other view of the matter also could have been taken by the Learned Magistrate and /or by the court of Sessions, but the question is whether the view taken by them, can be said to be patently illegal, absurd and not based on the material produced before them. In my opinion, it was possible for the Learned Magistrate, to come to a conclusion about sufficiency of grounds, for presuming that the accused had committed an offence punishable under Section 420 of IPC. There were certainly some features of the case, which would make it legitimate to take such a view. Though, there might be other contentious issues, the Learned Magistrate was justified in defering the consideration of those aspects, till the final stage, and avoiding a meticulous examination of the evidence and materials at the stage of framing of charge. Moreover, it is not that no circumstances, as would need some explanation from the accused, so as to rebutt the inference about they having had a dishonest intention from the inception which may be drawn, from the facts alleged in the complaint and the evidence adduced, exist in this case. A meticulous examination and evaluation of the evidence, can always be more appropriately done at the final stage of the trial, when further evidence/material on the relevant aspects can be expected to be available. The Court of Sessions has also considered the matter in proper perspective and though it may not be possible to agree with everything that has been said by the Learned Additional Sessions Judge, his overall view that no case for interfering with the order passed by the Learned Magistrate in the revisional jurisdiction was made out, cannot be said to be illegal or improper.
23 Since it cannot be said that the order of framing charge is based on no material, or that, it was not possible for the Learned Magistrate to come to a conclusion, that there was ground for ' presuming ' that the accused persons have committed the offence in question, no interference with the impugned order in the constitutional and inherent jurisdiction of this court, is called for.
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| 24 | The petition is dismissed. | |
| Interim stay stands vacated. |
(A.M.THIPSAY, J.)
3 issues framed by the court
Whether the order framing the charge for cheating under Section 420 IPC is patently illegal and based on no material.
Whether the High Court can interfere with the framing of charges under Article 227 and Section 482 CrPC in a commercial dispute.
Whether the existence of past payments negatives the theory of dishonest intention to constitute cheating.
3 provisions across 3 enactments
Syed Jalal Jalali
Parvinder Singh Dhigra
A.M. Thipsay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
