PATNA HIGH COURT
Before :- R. P. Sinha, J.
Criminal Misc. No. 2060 of 1975, D/d. 30.4.1976.
For the Petitioners :- Prabha Shanker Mishra and Rajendra Prasad Singh, Advocates.
Ramesh Kumar Jain - Petitioner
Raghubans Mani Prasad - Opposite Party.
For the Opposite Party :- K.N. Gupta and Mahendra Prasad Bhartee, Advocates.
Cases Referred :
R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : (1960 Cri LJ 1239).
R. P. Sinha, J. :- This is an application under Section 482 of the Code of Criminal Procedure, 1973, for quashing the order passed on 15.12.1973, by the Sub-divisional Magistrate, Siwan taking cognisance of offences under Sections 420, 406 and 120, Indian Penal Code, and the proceeding against the petitioner.
2. The facts and circumstances giving rise to this application, in brief, are as follows: The petitioner is a partner of M/s. M.R. Oswal Hosiery Mills, Ludhiana (Punjab), which deals in the business of manufacturing of hosiery goods and supplies hosiery goods on orders being placed with the firm. The opposite party, namely, the complainant has a shop of readymade clothes in the town of Siwan. On 15.12.1973, the opposite party filed a petition of complaint in the court of the Sub-divisional Magistrate, Siwan, for offences under Sections 420, 406 and 120, Indian Penal Code against (i) Tawak Khan, agent of the Oswal Hosiery Mills, (ii) the proprietors (Malikan) of M/s. M.R. Oswal Hosiery Mills, Ludhiana (Punjab), (iii) Manager and (iv) the Packer of the aforesaid Hosiery firm, alleging therein that the agent, namely, Tawak Khan approached him on 30.8.1973 and secured orders for readymade clothes and even though he was not willing and had sufficient stock in his shop, he was induced by him to place two orders, one for articles worth Rs. 1154.50 paise and another for articles worth Rs. 1179/-, one being in respect of non-taxable and other being in respect of taxable garments and subsequently received the invoice for having sent articles worth Rs. 1768.07 ps. and the railway receipt was sent through the Central Bank of India at Siwan. He paid Rs. 1777.07 ps., the amount under the bill including the bank charges and obtained the railway receipt. On the basis of the said receipt, he obtained from the parcel office a box which he found to be intact and there was no mark of tampering on the same and its weight tallied with that as mentioned in the receipt. Since he did not find any mark of tampering on the box, he did not take open delivery, but when he brought the box at his shop and opened it there, he found that it contained garments worth Rs. 300/- only and the rest of it contained bricks and stone-chips to maintain the weight. He informed the accused persons by telegram but did not receive any satisfactory reply from them regarding compensation for the loss or for supplying the remaining goods to him. According to the opposite party, the accused persons had conspired between themselves to cheat him and to put him in great loss. Hence, he had prayed for taking action against them.
3. Learned Sub-divisional Magistrate, Siwan, examined the complainant on solemn affirmation, took cognisance of the offence under Sections 420, 406 and 120, Indian Penal Code, summoned the accused persons and transferred the case to the Munsif Magistrate, 1st Class, Siwan, for disposal.
4. It appears that the petitioner had filed a Criminal Miscellaneous case bearing No.3952 of 1974 in this Court, on 10.12.1974, but the same was withdrawn. The opposite party on 15.4.1975 had made an application, after ascertaining the name of the petitioner as one of the partners of the firm in question, for issuing processes against him and on that very day, processes were issued against the petitioner. Having come to know that processes have been issued against him for his appearance, on 4.6.1975, he made arrangements through the agent of his firm at Patna to take necessary steps and the case was adjourned to 2.8.1975.
5. The petitioner has filed this application to quash the order by which cognisance was taken by the learned Sub-divisional Magistrate and also to quash the proceeding pending against him, on the ground: (i) that there is no allegation against the petitioner, in the petition of complaint, (ii) that there is no criminal liability as according to the petitioner, it may be a case of civil liability, (iii) that the offences under Section 420 or Sections 406/120, Indian Penal Code, are not made out against the petitioner, and (iv) that the persons who are named as witnesses in the petition of complaint, were not examined by the learned Magistrate at the time of taking cognizance. No doubt, there is no allegation against the petitioner in the petition of complaint by name, but there is allegation against the proprietors (Malikan) of the firm and the petitioner, being one of the partners of the said firm, cannot say that there is no allegation against him. The opposite party himself had informed the court that he could ascertain the name of the petitioner as one of the partners of the firm and had prayed for issuing the processes against him. On the allegations made in the petition of complaint, it cannot be said at this stage that there is no criminal liability and at the most there may be only civil liability. I would not like to express any concluded opinion on the point at this stage. In the petition of complaint, there are allegations and it cannot be said that they do not constitute the offences alleged. The cognisance was taken by the learned Magistrate on the basis of the allegations made in the petition of complaint and the complainant was thereupon examined on solemn affirmation. For taking cognizance, it was not at all necessary for the Magistrate to examine the witnesses named in the petition of complaint. All that Section 200 of the Code of Criminal Procedure requires is that the Magistrate taking cognisance of an offence on complaint should examine the complainant and the witnesses present, if any, on oath and the substance of examination should be reduced in writing signed by the complainant, witnesses of the complainant and the Magistrate. From that, it does not follow that the Magistrate must invariably examine the witnesses named in the petition of complaint at the time of taking cognizance. He can examine the witnesses of the complainant if they are present at the time of examination of the complainant on oath. So, in my opinion, the order of the learned Magistrate taking cognisance cannot be attacked on the ground that the witnesses named in the petition of complaint were not examined by him at the time of taking cognizance.
6. The learned lawyer for the petitioner has strenuously argued that criminal intention of the accused at the time the offence is said to have been committed must be established and mere breach of contract cannot give rise to criminal prosecution. No doubt, to hold a person guilty of the offence of cheating it has to be shown that his intention was dishonest at the time of making the promise and, as such, dishonest intention cannot be inferred from the fact that he could not subsequently fulfil the promise.
7. Here, the question is whether the cognisance taken by the learned Magistrate and the proceeding started against the petitioner and others should be quashed before giving an opportunity to the prosecution to substantiate the allegation made in the petition of complaint. In this connection, the decision of the Supreme Court in the case of R.P. Kapur v. State of Punjab, AIR 1960 SC 866 = (1960 Cri LJ 1239) has got to be kept in view. There it has been held that the inherent jurisdiction of High Court can be exercised to quash proceeding in proper cases either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against accused person should be tried under the provisions of the Code of Criminal Procedure and this Court would be reluctant to interfere in an interlocutory stage. The Supreme Court in that case, by way of illustration, has given three categories of cases where the inherent jurisdiction to quash proceeding should be exercised. One of them which is relevant for this case, is where the allegations in the first information report or the complaint, even if taken on their face value and accepted in their entirety, do not constitute the offence alleged. In my opinion, this case does not come under this category or any other category of cases where the inherent jurisdiction to quash proceeding should be exercised.
8. In the result this application fails and is accordingly dismissed.