Mohanty Traders vs State of Orissa

Pradip Mohanty, J.—In this revision, challenge has been made to the order dated 17.07.2006, passed by the learned Sub-Divisional Judicial Magistrate, Sadar, Cuttack in I.C.C. Case No. 324 of 2006 refusing to take cognizance. The challenge is on the ground of non-application of mind and non-assignment of reasons.

The complainant is the proprietor of M/s. Mohanty Traders, who was appointed as the super stockist for the entire State of Orissa by M/s. Emerald Laboratories Limited. The said firm entered into an agreement with the present Petitioner on 28.01.2005 for which the Petitioner paid Rs. 1,80,000/ - by way of different drafts and also by cash. As per clause-6 of the agreement, the Petitioner is entitled to commission on sale of goods and collection of money made by the staff of the company directly from the market. The company and its staff committed deliberate criminal breach of trust and caused wrongful loss to the Petitioner by avoiding to pay the commission to the Petitioner with an intention to cheat him. The Petitioner filed a complaint case being I.C.C. Case No. 324 of 2006 under Sections 409, 418 and 420 IPC before the S.D.J.M., Sadar, Cuttack. After filing of the complaint petition, the learned S.D.J.M. recorded the initial statement of the complainant and directed to conduct an enquiry u/s 202 Code of Criminal Procedure in course of which two witnesses were examined by the complainant. After the enquiry, a memo was filed by the Petitioner to convert the case to one under Sections 408, 418 and 420 IPC. But the learned Magistrate, by order dated 17.07.2006, dismissed the complaint petition with the observation that it does not make out a case under Sections 408/418/420 IPC against any of the accused persons.

Mr. Palit appearing for the Petitioner vehemently contends that the initial statement of the complainant and the statement of witnesses examined in course of 202 Code of Criminal Procedure enquiry reveal a prima facie case under Sections 408/418 IPC and all the ingredients of the above offences have been fulfilled. He also contends that in passing the impugned order, the learned Magistrate has not applied his mind and has not assigned any reason.

Mr. Behera, learned Addl. Standing Counsel, on the other hand, contends that the real accused persons having not been made parties to the revision petition, it should be dismissed in limine.

It is the settled principle of law that a person against whom a complaint is filed does not become an accused unless it is decided to issue process against him. Even if he participates in the proceeding u/s 202 Code of Criminal Procedure, he does so not as an accused but as a member of the public. The object of the enquiry u/s 202 Code of Criminal Procedure is the ascertainment of facts whether the complainant has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. The section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. Such a person cannot even be legally called to participate in the proceedings u/s 202 Code of Criminal Procedure. The nature of this proceeding has been fully discussed by the apex Court in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, . Since Section 202 of the Code of Criminal Procedure, 1973 is the exact reproduction of the old Code, this Court relies upon the previous decision. The same view has been reiterated by the apex Court in Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, . Therefore, it is not necessary to take notice to the accused persons since till now there is no material against them and no process has been issued to them by the learned Magistrate.In other words, it cannot be said that the revision should be dismissed in limine as the real accused persons have not been made parties to it.

Coming to the merits of the case, it is apparent from the impugned order that no reason has been ascribed by the learned Magistrate and the order is a cryptic one. It is the settled principle of law that while dismissing a complaint petition, a reasoned order ought to be passed. Section 203 Code of Criminal Procedure also speaks of passing a reasoned order. For the sake of convenience, the said section is extracted below:

Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) u/s 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

From a bare reading of the above provision, it is crystal clear that it is the duty of the Magistrate to give reasons while passing an order of dismissal of the complaint petition. This view has also been fortified in Maikaal Fibres Ltd. and Anr. v. ICICI Bank Ltd. and Ors. (2006) 34 OCR 374 (SC).

In view of the above, this Court sets aside the impugned order passed by the learned S.D.J.M. and remits the matter back to him for fresh disposal in accordance with law by passing a reasoned order after taking into consideration the materials available on record. The revision is accordingly allowed.