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IN THE HIGH COURT OF BOMBAY
(B. R. Gavai, J.)
NATURAL SUGAR AND ALLIED INDUSTRIES LTD. and another - Applicants
V.
RAZZAK s/o HAZI GAFFAR and others - Respondents
Advocates appeared
For applicants: R. B. Pendharkar, Senior Advocate
For respondent No. 1 : M. M. Agnihotri
For respondent No.2: K. S. Dhote, Additional Public Prosecutor
Criminal Procedure Code, 1973 - Section 190 Issue of process by Magistrate It is not necessary for the Magistrate to pass a detailed order at the stage of issuance of process. AIR 2000 SC 1456, Rel.
Criminal Procedure Code, 1973 - Section 190 Power of Magistrate to take cognizance of offence Not restricted by territorial jurisdiction Any Judicial Magistrate First Class has a power to take cognizance of the offence whether committed in his jurisdiction or not. The order of issuing process against the applicants was assailed on the ground that the JMFC, Pulgaon, has no jurisdiction to issue the process since the cause of action has arisen within the territorial jurisdiction of the Court at Mazalgaon.
Held, that any Judicial Magistrate First Class has a power to take cognizance of the offence whether committed in his jurisdiction or not. The issue of jurisdiction would become relevant only when the question of enquiry of trial arises. In any case, it is open for the parties to raise this issue before the Magistrate and the Magistrate after perusing the documents in support of the submissions of either of the parties can decide the question of jurisdiction, and if he finds that he does not have jurisdiction and some other Court has a jurisdiction. However, at this stage, it would not be permissible to go into the said question. If the parties so desire, they may raise the issue pertaining to the jurisdiction before the Magistrate who has taken cognizance and the Magistrate would decide the same after hearing the parties. 1999 (8) SCC 686 and 2003 All MR (Cri) 1903, Rel.
Criminal Procedure Code, 1973 - Sections 190 and 482 Quashing the issuance of process Scope of enquiry by High Court. It is not permissible at this stage to go into the truthfulness or otherwise of the allegations in the complaint. The only scrutiny that would be permissible, would be as to whether after reading the complaint as a whole and taking the averments on its face value and accepting them in entirety whether the ingredients to constitute an offence, for which the process has been issued are made out or not. Upon perusal of the complaint as a whole, and taking the allegation at their face value and accepting them in entirety, at least, prima facie, the ingredients to constitute the offence for which the process has been issued are made out. It will not be permissible for High Court to go into the documents which have been placed before it for the first time by both the parties, to find out whether the dispute is of civil nature, by appreciating the evidence. AIR 1991 SC 1260 and AIR 2004 SC 517, Ref.
2. The applicants assail the order passed by the learned Judicial Magistrate, First Class, Pulgaon dated 21st June, 2005 thereby issuing the process against the accused for the offence punishable under sections 406, 409, 420 read with section 34 of the Indian Penal Code. The facts, in brief, leading to the present application are as under.
3. The applicant No.1, Company, which is the accused No. 1 in the complaint, is a Sugar Manufacturing Company. The accused No. 2 is the Managing Director and Chairman of the accused No.1. The accused Nos. 3 and 4 are the Merchants/Brokers working for the accused No.1. The accused No.5 is the partner of the accused No.4.
4. It is an allegation of the complainant, respondent No. 1 that on 10th May, 2004, the accused No.3 by telephonic message induced the complainant who was at Pulgaon for purchasing 300 bags of sugar. It is the allegation of the complainant that the accused No.3 gave a telephonic message to the complainant and offered him to purchase 300 bags of sugar at the rate of Rs. 1485/ - per bag. It is further alleged that the complainant accepted the said offer and as such the accused No. 3 instructed the complainant to send a demand draft of Rs. 2,22,750/ - in the name of the accused No. 1. It is alleged that accordingly demand draft for the said amount was drawn by the complainant in the name of the accused No. 1. Company payable at Bank of Maharashtra, Latur Branch and the same was posted and entrusted in the hands of the accused No.3. It is alleged that the said demand draft was given by the accused No.3 to accused No.2. It is the allegation of the complainant that, however, the accused No. 2 neither gave the agreed sugar bags not repaid the said amount. It is alleged that though the accused Nos. 3 and 4 had sent a letter to the accused No.2 requesting him to deliver the agreed goods to the complainant, the accused No.2 flatly refused to deliver the said goods. It is alleged that the said amount was collected by the accused No.2 in the name of accused No. 1. The complainant, therefore, alleging that the accused Nos. 1 to 4 had misappropriated the said amount and also cheated the complainant by inducing him to pay the amount and thereafter refused to deliver the goods, filed a complaint for the offence punishable under sections 406, 409, 420 read with section 34 of the Indian Penal Code. The complaint was also verified by the complainant. The learned Magistrate initially called for an enquiry report from the police under section 202 of the Code of Civil Procedure. Vide order dated 21st June, 2005, the learned Magistrate issued a process for the offence punishable under sections 406, 409, 420 read with section 34 of the Indian Penal Code. Being aggrieved thereby, the applicants are before this Court.
5. Heard Shri R. B. Pendharkar, the learned Senior Counsel, appearing on behalf of the applicants and Shri M. M. Agnihotri, the learned Counsel appearing on behalf of the respondent No. 1.
6. Shri R. B. Pendharkar, the learned Senior Counsel assails the impugned order on the following grounds.
(i) That, the Court at Pulgaon did not have territorial jurisdiction as the entire cause of action arises within the jurisdiction of the Court at Mazalgaon. (ii) That, the dispute was entirely civil dispute and no ingredients were made out to make out an offence for which the process was issued.
(iii) That, the applicant No.1 was a juristic person and as such he could not be charged with the offence for which the process was issued, as mens rea, was an essential ingredient for the offence.
(iv) That, the order of issuance of process was passed mechanically and no reasons were recorded for issuance of process.
(v)
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