2008 Supreme(SC) 1441

2008(7) Supreme 97
SUPREME COURT OF INDIA
C.K. Thakker and D.K. Jain, JJ.
Prabha Mathur and Anr. — Appellants
versus
Pramod Aggarwal & Ors. — Respondents
Criminal Appeal No. 1532 of 2008
Arising out of Special Leave Ptition (Crl.) No. 1368 of 2007
Decided on : 26-09-08

IMPORTANT POINT
An order passed in writ petition without issuing notice and affording opportunity of hearing being in violation of principles of natural justice is not sustainable.

Headnote:Indian Penal Code, 1860 – Sections 420, 467, 468, 471 read with Sections 34 and 120B – Complaint filed by complainants against accused for offences punishable under – Case of complainants that they contacted appellants for purchase of property from them since appellants were having share in the joint family property – Complainants apprised appellants that they were interested in purchasing share of the property owned by them and that they were also to purchase remaining property from other co-owners – Allegation in complaint that even though appellants sold their shares in the property to the complainants, they however, did not come to the office of Sub-Registrar, Agra for registration of sale-deeds-Complaint dismissed by Magistrate holding that entire case being of a civil nature, there was, no justification for initiating criminal proceedings – Revision petitions thereagainst – Dismissed – Writ petition – High Court without issuing notice to appellants and without affording opportunity of being heard, allowed both the writ petitions – Appeal – In view of facts and circumstances of case, submission of appellants held well-founded that High Court ought to have issued notice and afforded hearing before passing impugned order in writ-petitions- Writ petitions were not dismissed in limine – In accordance with Rule 2 of Chapter XXII of the Rules, notices ought to have been issued to appellants before writ petitions were heard and finally decided – But even otherwise, issuance of such notice to appellants was necessary and was in consonance with the principles of natural justice and fair play – Even on merits, impugned order of High Court held not sustainable as High Court made certain observations against appellants which had prejudicially and adversely affected them – Finding as to mens rea on part of appellants and that ‘clear case of cheating’ being made out, could not have been arrived at without issuing notice to appellants and without affording opportunity of being heard – High Court could not have set aside judgments of Courts below and could not have made aforesaid observations – Impugned order passed by High Court hence set aside and matter remitted to High Court. (Paras 16 to 26)

       Facts of the Case :

        1. A Complaint was filed by complainants herein in the instant case against accused for offences punishable under Sections 420, 467, 468, 471 read with Sections 34 and 120B. Case of complainants that they contacted appellants for purchase of property from them since appellants were having share in the joint family property-Complainants apprised appellants that they were interested in purchasing share of the property owned by them and that they were also to purchase remaining property from other co-owners. Complainants alleged that even though appellants sold their shares in the property to the complainants, they however, did not come to the office of Sub-Registrar, Agra for registration of sale-deeds. Complaint was dismissed by Magistrate holding that entire case being of a civil nature, there was, no justification for initiating criminal proceedings. Revision petitions filed there against were dismissed. Writ petitions filed there against were allowed by High Court without issuing notice to appellants and without affording opportunity of being heard.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        In view of facts and circumstances of case, submission of appellants that High Court ought to have issued notice and afforded hearing before passing impugned order in writ-petitions was held to be well-founded. Writ petitions were not dismissed in limine. In accordance with Rule 2 of Chapter XXII of the Rules, notices ought to have been issued to appellants before writ petitions were heard and finally decided. But even otherwise, issuance of such notice to appellants was necessary and was in consonance with the principles of natural justice and fair play. Even on merits, impugned order of High Court held not sustainable as High Court made certain observations against appellants which had prejudicially and adversely affected them. Finding as to mens rea on part of appellants and that ‘clear case of cheating’ being made out, could not have been arrived at without issuing notice to appellants and without affording opportunity of being heard.Impugned order passed by High Court hence was set aside and matter was remitted to High Court.

       Result : Ordered accordingly.