The requirement of prima facie satisfaction for summoning an accused person and the need for the court to apply its judicial mind at the stage of taking cognizance and issuing summoning orders.

JUDGMENT :

Sharad Kumar Sharma, J.

The instant C482 Application has been preferred by the present applicant, thereby putting a challenge to the proceedings of Criminal Case No. 344 of 2023, State Vs. Bharat Singh, for his alleged involvement in commission of the offence under Sections 409, 420 and 120B of IPC, on the ground that the set of allegations as leveled in the FIR No. 11 of 2023, wherein it was found that he was instrumental in connivance with the named accused persons for fraudulently getting the amount deposited into his two accounts, which was otherwise were to be placed in the ATM boxes, for which the services of CMS India Private Limited, was assigned.

2. There are multifold arguments which has been extended by the learned counsel for the applicant that no offence under Section 409 of IPC is made out against the present applicant for the reason being that he was not an employee of a banker to bring him within the ambit of Section 409 of IPC. But then, if the contents of the para 10 of the C482 Application is taken into consideration, after examination of witnesses, for example that of Devraj, Ashish and Jogendra, who are directly involved in performance of the duties in relation to the company, which was actually responsible for putting the cash into the ATM boxes. It is revealed that the amount was deposited into the two accounts which were held by the present applicant.

3. To what extent he was responsible for commission of the said offence because there was a siphoning of cash, which was deposited into the accounts of the present applicant would be a subject matter to be decided by the learned trial Court by adducing of evidence because it entails an appreciation of evidence.

4. The learned counsel for the applicant submits that the summoning order itself would be bad in the eyes of law because the same have been issued on 14.08.2023 by the Court of Judicial Magistrate, Gopeshwar, merely on the ground based of on the statement recorded by the present applicant under Section 161 of CrPC.

5. This argument extended by the learned counsel for the applicant that merely because of the summoning order is based on the statement recorded by the applicant under Section 161 of CrPC would vitiate the summoning order is not sustainable in the eyes of law, for the reason being that the Hon’ble Apex Court has observed that at the stage of taking of cognizance of offence or the summoning of an accused person, the credible material or evidence is not required to be appreciated with that decision in order to justify the summoning of an accused person.

6. Only a prima facie cognizance is required to be taken by the Court, which should reflect the application of mind, for the purposes of taking cognizance and issuing the summoning order. What is required is that the Court ceased with the stages of proceedings for issuance of the summoning order has to consider the defence version and the material of arguments which are on record.

7. The aforesaid principle has been laid down by the Hon’ble Apex Court in para 8 of the judgment, as reported in 2015 (3) SCC 424, Sonu Gupta Vs. Deepak Gupta and others, which is extracted hereunder:-

“8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magi