Court No. - 41
Case :- CRIMINAL REVISION No. - 3046 of 2018 Revisionist :- Amit Goyal Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Kamlesh Kumar Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Aniruddha Singh,J.
1- Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.
2- This criminal revision has been preferred against the order dated 30.5.2018 passed by Additional Chief Judicial Magistrate, Court no.11, Agra and summoning order dated 8.12.2015 passed by Additional Chief Judicial Magistrate, Court no.8, Agra in complaint case no.2855 of 2015 whereby the revisionist was summoned under Section 138 of Negotiable Instruments Act.
3- Against summoning order, one application under Section 482 Cr.P.C. No. 12583 of 2017 was filed by the revisionist and vide order dated 3.5.2017 by co-ordinate Bench of this Court an opportunity was given to the revisionist to move an application under Section 251 Cr.P.C. and in compliance of the said order, application was moved by the revisionist before the trial court and was dismissed by the impugned order. Hence this revision.
4- Learned counsel for the revisionist submitted that the summoning order was passed illegal, arbitrary and without application of mind.
5- Learned A.G.A. has supported the impugned order and contended that the impugned order is just and legal and there is no illegality or infirmity and the present criminal revision is bereft of merits and is liable to be dismissed.
6- From perusal of the record, it transpires that a cheque bearing no.255384 dated 10.8.2015 for a sum of Rs.5,05,338/- was issued by the revisionist in favour of the complainant for business transaction between them and that was dishonoured.
7- It is relevant to quote Sections 203 and 204 Cr.P.C.
"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 proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
204. Issue of process.-- (1) If in the opinion of a Magistrate taking cognizance of offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons- case, he shall issue his summons for the attendance of the accused, or
(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."
8- It is settled principle of law that at the time of taking cognizance or issuing process under Section 204 Cr.P.C., the court is required to apply its mind and if he finds sufficient ground, it may take cognizance and issue process of summons.
9- In the case of Swarn Anand v. Chief Judicial Magistrate, 1977 Cr.L.J. 355 (All), this Court has held that the expression "in the opinion of a Magistrate" means that the Magistrate has to merely form an opinion as to the sufficiency of grounds for proceeding against the accused persons. It does not require him to record any reasons for his so doing.
10- In the case of National Insurance Company Ltd. v. Narendra Kumar Jhanjhri, 1990 Cr.L.J. 773, the Court has held that at this stage the defence of the accused is not the concern of the Court and it is only for the accused to appear and then put his defence which is to be considered by the Court at the time of framing of charge.
11- In the case of Anil Saran v. State of Bihar, AIR 1996 SC 204, the Apex court has held that the defence open to the accused is not to be seen at the time of issuance of process.
12- In the case of Ramesh Kumar v. Sushila Srivastava, 1997 Cr.L.J. 282 (284)(Raj), the Court has held that an order issuing process cannot be set aside on detail appreciation of evidence even if different view is possible.
13- In the case of dismissal of complaint under Section 203 Cr.P.C. the reasons to be recorded and if the Court found no sufficient ground for proceeding he may dismiss the complaint. It is also pertinent to mention herein that the offence levelled against the petitioners are not compoundable and cognizable.
14- In revision, it will not be proper to decide issues relating to fact which has to be adjudicated by the trial court/competent court. The Court finds that issue raised herein by the learned counsel for the petitioners and the documents adduced along with writ petition, may raise the issue and adduce the documents before the court below at the time of framing charges.
15- In view of the discussions made above and as per settled principles of law, at the time of taking cognizance of the offence and issuing summoning order the court is not required to give elaborate reasons describing the sufficient ground for taking cognizance or issuing summoning order of the offence.
16- In the present case, the impugned order has not been passed either on a printed proforma or by use of rubber stamp. A perusal of impugned order shows that cognizance and summoning order have been passed by court after perusal of case, evidence provided by the complainant/ papers. Merely for the reason that it has been written by ministerial staff of the court upon instructions of court, it may not be considered to have been passed in mechanical manner. The possibility, if any, that upon trial one or the other of several accused may be held not guilty of one or the other offences, may not be sufficient to hold the impugned order as wrong or illegal.
17- In view of the discussions made above, the revision is disposed of finally.
18- The revisionist has right to move an application for discharge before the court below at appropriate stage.
Order Date :- 24.9.2018/OP