2023 Supreme(SC) 2

SUPREME COURT OF INDIA
Sanjiv Khanna, J.K. Maheshwari, JJ.
Deepak Gaba and Others – Appellants
Versus
State of Uttar Pradesh and Another – Respondents
Criminal Appeal No. 2328 of 2022
Decided On : 02-01-2023

IMPORTANT POINTS
(1) Summoning order – Material on record should indicate that ingredients for taking cognizance of an offence and issuing summons to accused is made out.
(2) Sine qua non of Section 415 of IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and absence of these elements would debase offence of cheating.
(3) Summoning order is to be passed when complainant discloses offence and when there is material that supports and constitutes essential ingredients of offence – It should not be passed lightly or as a matter of course.

Headnote:

(A) Indian Penal Code, 1860 – Sections 405 and 406 – Criminal Procedure Code, 1973 – Section 482 – Criminal breach of trust – Summoning order – Quashing petition – In case of a private complaint, Magistrate can issue summons when evidence produced at pre-summoning stage shows that there is sufficient ground for proceeding against accused – Material on record should indicate that ingredients for taking cognizance of an offence and issuing summons to accused is made out – Mere wrong demand or claim would not meet conditions specified by Section 405 of IPC in absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching discharge of trust – In instant case, materials on record fail to satisfy ingredients of Section 405 of IPC – Complaint does not directly refer to ingredients of Section 405 of IPC and does not state how and in what manner, on facts, requirements are satisfied – Pre-summoning evidence is also lacking and suffers on this account – In absence of factual allegations which satisfy ingredients of offence under Section 405 of IPC, mere dispute on monetary demand does not attract criminal prosecution under Section 406 of IPC. (Paras 11 and 15)

(B) Indian Penal Code, 1860 – Section 420 and 471 – Criminal Procedure Code, 1973 – Section 482 – Cheating and forgery – Summoning order – Quashing petition – In order to apply Section 420 of IPC, ingredients of Section 415 of IPC have to be satisfied – To constitute offence of cheating under Section 415 of IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property – Sine qua non of Section 415 of IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and absence of these elements would debase offence of cheating – In present case, ingredients to constitute an offence under Section 420 read with Section 415 of IPC are absent – Section 471 of IPC is also not attracted – Complaint discloses a civil dispute – Attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex-facie outrageous or pure civil claims, are not be entertained and should be dismissed at threshold – Proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite opposite side due to private or personal grudge – Allegations in complaint and pre-summoning evidence on record, when taken on face value and accepted in entirety, do not constitute offence alleged – Inherent powers of court can and should be exercised in such circumstances – Summoning order and order issuing non-bailable warrant aside and quashed. (Paras 16, 17, 18, 20, 21, 24 and 25)

(C) Criminal Procedure Code, 1973 – Sections 200, 202 and 204 – Issuance of process – Summoning order is to be passed when complainant discloses offence and when there is material that supports and constitutes essential ingredients of offence – It should not be passed lightly or as a matter of course – When violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to facts, Magistrate must ensure clarification of ambiguities – Summoning without appreciation of legal provisions and their application to facts may result in an innocent being summoned to stand prosecution/trial – Initiation of prosecution and summoning of accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in society – It results in anxiety of uncertain times. (Paras 21 and 22)

Facts of the case:

Appellants takes exception to the order dated 30th March 2022, whereby High Court of Judicature at Allahabad has dismissed their petition under Section 482 of Code of Criminal Procedure, 1973, challenging the summoning order dated 19th July 2018 passed by Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad, Uttar Pradesh.

Findings of Court:

Order-sheet of trial court enclosed with appeal reveals that notwithstanding that summoning order was limited to unnamed Manager and Chief Manager of JIPL, Additional Chief Judicial Magistrate had deemed it appropriate to issue non-bailable warrant. Non-bailable warrant was not issued in the name of any person but by designation against Chief Manager JIPL, Andheri East, Mumbai. This was also one of the reasons that had prompted appellants to file the petition under Section 482 of Code.

Result : Appeal allowed.