Anoop Singh and Others vs State of M.P. and Others

Sheel Nagu, J.—This common order shall govern disposal of the instant case and M. Cr.C. No. 1934/2015 as both involve the same question of law on the basis of similar factual matrix involving same inconsequential distinguishing features.

The inherent power of this Court under Section 482 of Cr.P.C. is invoked to assail the common order passed on 05.12.2014 by the trial court whereby cognizance is taken on the complaint under Section 200 of Cr.P.C. preferred by the respondent No. 2 for the offence punishable u/Ss. 406, 294 and 506 (II) of IPC and issuing bailable warrant of Rs. 500/- against the seven persons including the petitioner.

Learned counsel for the rival parties are heard on the question of admission.

It is contended by the learned counsel for the petitioner that by taking cognizance of the complaint preferred by the respondent No. 2/complainant, failure of justice has occasioned as the complaint does not disclose any offence u/ss. 406, 294 and 506(II) of IPC. It is submitted that initially a written complaint vide Annexure P/9 dated 20.05.2013 was lodged by the respondent No. 2/complainant before the Station House Officer of Police Station Morar District Gwalior but the same did not allege any offence against the petitioner. It is further submitted that the offence alleged arises purely out of transaction of civil nature. Moreover it is contended that the petitioner Anoop Singh in M. Cr.C. No. 984/2015 has resigned from the office of Director of the Company in question w.e.f. 20.07.2010 vide Annexure P/2 which is form No. 32 issued by the Assistant Registrar of Companies Madhya Pradesh. Lastly it is contended that the petitioner Anoop Singh is suffering from multiple sclerosis which is an immune deficiency ailment which has rendered the petitioner Anoop Singh weak and immobile. Learned counsel for the petitioner place reliance upon the decision of Apex Court in the case of Thermax Ltd. and Others Vs. K.M. Johny and Others, (2012) CriLJ 438 : (2011) 4 Crimes 179 : (2011) 4 RCR(Criminal) 409 : (2011) 13 SCC 412 : (2011) 11 SCC 412 : (2011) 11 SCC 128 : (2011) 6 UJ 3695 .

Per contra the complainant/respondent No. 2 who appears in person contends that on mere reading of the allegations contained in the complaint filed under Section 200 of Cr.P.C. the offence of criminal breach of trust, using abusive word and criminal intimidation are made out. It is submitted by the complainant/respondent No. 2 that cheques were entrusted to the Director of the Company in January 2010, July 2010 and August 2010, drawn in the name of Company as part consideration for purchase of shops No. 3 and 8. It is further submitted by the complainant/respondent No. 2 that the Directors of the Company who have been made the accused and who are petitioners herein failed to discharge the trust reposed upon them by the complainant/respondent No. 2 by failing to execute and register the sale deed to complete the transaction of sale. It is further submitted that since the failure to discharge the trust reposed by the complainant/respondent No. 2 was in violation of the earlier promise made and such failure is coloured with the flavour of dishonesty, and has resulted into the petitioner suffering, the basic ingredients of criminal breach of trust under Section 405 of IPC are made out which are punishable under Section 406 of IPC. It is also submitted by the complainant/respondent No. 2 that the petitioner has never appeared before the trial court, till date.

Pertinently the learned counsel for the rival parties informed that against one of the Directors of the Company, charges have been framed only for offence punishable u/s. 406 of IPC but not for others offences against which Criminal Revision is preferred before this Court which is pending till date. It is further informed that in the said Criminal Revision the entire record of the learned trial Court is requisitioned and therefore, for all practical purposes the trial in question has not come to a standstill.

The impugned order taking cognizance of the complaint preferred by the respondent No. 2/complainant is an order passed under Section 204 of Cr.P.C. The petitioner is required to be appeared and give the statement before the learned trial Court so that the Court can decided on the question of framing of charge. Thus, the view taken by the learned Magistrate in the impugned order is a tentative one which is based exclusively on the unilateral material filed by the respondent No. 2/complainant in shape of the complaint and supportive affidavits.

After yet again recording statement of petitioner the learned Magistrate shall either discharge the petitioner or framed charges against him. The important aspect which is palpable from the impugned order of the learned Magistrate that bailable warrant has been issued without first taking recourse to issuing summon under Section 204(1)(a) and (b) of Cr.P.C. The Apex Court in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, AIR 2008 SC 251 : (2007) 5 CTC 614 : (2007) 11 JT 499 : (2007) 12 SCALE 15 : (2007) 10 SCR 847 : (2007) AIRSCW 6659 has held that while dealing with complaint cases resort should be first had to the mode of summons whereas issuance of bailable/non-bailable warrant should be as a matter of last resort. In para 54 the Court lays down thus:-

In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable-warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

In the instant case it does not appear that any attempt was made to first issue summon against the petitioner after taking cognizance.

On the question of merits of the allegations contains in the complaint, this Court is of the considered view that since the matter is still pending on the question of framing of charge against/discharge of the petitioner, any comment by this Court may prejudice the case of the petitioner and the complainant.

Learned counsel for the petitioner Shri N.S. Kirar with his usual vehement tempered with humility attempted to emphasize the physical inability of the petitioner Anoop Singh to appear before the learned Magistrate. In this regard attention of this Court is drawn to certain documents Annexure P/11 which are pathological reports and discharge summary of Bombay Hospital and Medical Research Center.

Pertinently all these documents contained in Annexure P/11 are of the year 2010. Nearly 4 to 5 years have elapsed since 2010 and therefore, the said documents are of no avail to the petitioner Anoop Singh.

This Courts declines interference on merits of the matter and disposed of this petition at the admission stage with the following directions:-

The impugned order of the learned Judicial Magistrate First Class, Gwalior dated 05.12.2014 is upheld to the extent it takes cognizance of matter on the complaint filed by the respondent No. 2/complainant against the petitioner.

The impugned order of the learned Judicial Magistrate First Class, Gwalior dated 05.12.2014 is set aside to the extent it issues bailable warrant against the petitioner, as being against the law laid down in the case of Inder Mohan Goswami (Supra).

The petitioner is free to record his statement before the learned Judicial Magistrate First Class, Gwalior as and when summon require him/her to do so, including making of request for exemption from personal appearance, on relevant and cogent grounds after filing supportive material.

In view of the nature of the order passed herein there is no need to consider the law laid down by the Apex Court as cited by the learned counsel for the petitioner in the case of M/s. Thermax Ltd. (supra).

Accordingly, both the M. Cr.C. No. 984/2015 and M. Cr.C. No. 1934/2015 are disposed of in terms of aforementioned directions.

No cost.