Krishnagopal vs Purushottam and Another

K.L. Shrivastava, J.

This revision petition is directed against the order dt. 12-3-1982 passed by the Judicial Magistrate First Class, Jawad, district Mandsaur regarding prosecution of the petitioner in respect of offences under Sections 182 and 211 of the Indian Penal Code.

The circumstances giving rise to this petition are these; on the report dt. 18-2-76 lodged by the petitioner Krishnagopal, the non-applicant No. 1 was prosecuted by the police in the Court of Judicial Magistrate First Class, Jawad in respect of offences under Sections 406 and 420 of the I.P.C. (vide Cr. Case No. 307/76). Ultimately charge only u/s 420 of the I.P.C. was framed.

By his judgment dt. 12-3-82 the learned Magistrate acquitted the non-applicant Purshottam of the offence u/s 420 of the I.P.C. and in para 12 thereof passed the impugned order.

According for the petitioner''s case the non-application No. 1 had on 20-1-76 purchased groundnut oil worth R8. 34,534.38 paise from the former and cheated him stating that the price shall be paid in cash against delivery and that in the event of non-payment the oil shall be retained in trust. Only part payment towards the price was made but the oil was sold in breach of the trust.

It may be pointed out that Section 341 of the Criminal Procedure Code, 1973 (for short ''the Code'') contemplates appeal when a complaint has already been filed. In the instant case there is only an order for prosecution and the point for consideration is whether the petition deserves to be allowed.

From the earlier deposition of the petitioner as P.W. 1 it is gathered that prior to the written report dt. 18-2-76 lodged by him with the police, he had already received Rs. 34,534.00 from the vendee. It is in this context that the learned Magistrate observed the report in question was false.

It is pertinent to point out that subsequent to the transaction in question the petitioner in his letter dt. 20-1-76 (Ex.Dl) to the firm of the non-applicant No. 1 had stated that the balance outstanding after deducting Rs. 10,000/- being the amount of draft, stands at Rs. 4l,52O. 53p. In para 21 after perusal of his account books the petitioner had stated that on the date of the transaction in question a sum of Rs. 16,816.50p. was outstanding on account of previous transactions. We also have on the record of the Criminal Case No. 307/76 an application by the non-applicant No. 1 to the effect that between 1972 and 1976 oil worth Rs. 65,000.00 had been purchased and only a sum of Rs. 49,000.00 had been paid to the petitioner.

It may further be pointed out that the transaction in question was through Parasmal (P.W. 5). He has deposed that Ex.P-2 is the relevant Sauda Chitthi and it was agreed that the entire amount of the price had to be paid against delivery. Towards the end of para 2 of his deposition his version is that the non-applicant No. 1 had agreed that in the event of nonpayment of price the oil shall be retained in trust.

learned Counsel for the petitioner relying on the decisions in State of Punjab Vs. Brij Lal Palta, , Santokh Singh Vs. Izhar Hussain and Another, and Chajoo Ram Vs. Radhey Shyam and Another, urged that the order for prosecution of the petitioner is wholly unwarranted.

First as to the offence u/s 182 of the I.P.C. Section 195(a) of the Code provides that no Court shall take cognizance of any offence punishable u/s 182 I.P.C. (giving false information to a public servant in order to cause him to use his lawful power to the injury or annoyance of any person) except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

In the instant case the petitioner had lodged the relevant report with the police which had launched the prosecution. As pointed out in the decision in Brijlal''s case (1969 Cri LJ 645) (SC) (supra) in terms of Section 195(l)(a) of the Code cognizance of the offence u/s 182 of the I.P.C. could be taken by the Magistrate only on the written complaint of the police officer concerned or of some other public servant to whom he is administratively subordinate. In this very connection the decision in Chandra" Shekhar''s case 1981 Jab LJ 122 is also pertinent.

From the foregoing discussion, it is clear that the learned Magistrate had no locus standi to order filing of complaint in respect of the offence u/s 182 of the I.P.C.

Now as to the offence u/s 211 of the I.P.C.

At this stage it is pertinent to advert to Section 340 of the Code. It provides that where in the opinion of the Court it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195 of the Code which appears to have been committed in or in relation to a proceeding in that Court, such Court may record a finding to that effect and make a complaint thereof in writing to a Magistrate of the First Class having jurisdiction.

In the decision in Santokh Singh Vs. Izhar Hussain and Another, it has been observed that very incorrect or false statement does not make it incumbent on the Court to order prosecution. The Court has to exercise the judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. A prosecution has to be ordered only in the larger interest of justice.

In the decision in Dr. S.P. Kohli, Civil Surgeon, Ferozepur Vs. High Court of Punjab and Haryana, , with reference to Sections 191 and 193 of the I.P.C. it has been pointed out that before issuing process the Court should prima facie be of opinion that there are sufficient and reasonable-grounds for setting the machinery of criminal law in motion against the accused. The moment this guiding principle is over-looked the prosecution degenerates itself into a prosecution which often is fraught with evil consequences. The negative approach of trying to find out whether there was no prima facie case is not proper.

In the instant case, the learned Magistrate does not appear to have adverted to Section 195 of the code and to the question of expediency referred to in Section 340 of the Code.

As I have already pointed out above, the evidence is that according to the contract, payment was to be made against delivery and in the event of non-payment the oil was to be held by the vendee in trust. Further there were previous transactions between the parties and apart from the question of the petitioner''s right to appropriate payments towards previous outstanding dues he had'' actually so appropriated the sum of Rs. 10,000/- as is clear from Ex.D-1. In the circumstances set forth above, I am clear in my mind that it can safely be said that no case for fastening any criminal liability on the petitioner is disclosed.

For the foregoing reasons the revision petition is allowed and the impugned order regarding filing criminal complaint against the petitioner is set aside.