Mrs. Gurvinder Gaur vs Surya Agencies and Another

R. Regupathi, J.—The above Criminal Original Petitions have been preferred by the petitioner /proposed accused to quash the proceedings in M. P. Nos. 7463 & 7462 of 2007 respectively on the file of the Principal Sessions Judge, Vellore.

The complaints have been preferred by the respondents before the learned Principal Sessions Judge, Vellore invoking Section 340 of Cr.P.C., for an offence punishable under Sections 191, 192, 193 & 199, IPC. The learned Principal Sessions Judge issued notices dated 18-9-2009 for appearance of the petitioner on 28-9-2007 in person or through an advocate and to file objections. The petitioner questioning the legality of the notices issued by the learned Principal Sessions Judge preferred the present petitions to quash the proceedings.

The petitioner is an accused for an offence punishable u/s 138 of the Negotiable Instruments Act. Pending the proceedings, the petitioner preferred transfer applications and while so made certain misrepresentations before the Court and according to the respondents, the said misrepresentations constitute an offence punishable under Sections 191, 192, 193 & 199 of IPC. Only under such circumstance, the impugned notices have been issued by the learned Principal Sessions Judge.

The learned Counsel for the petitioner submits that as per Section 340(1) of Cr. P.C., the preliminary enquiry must the conducted and thereafter, if the proceedings are necessary, a finding to that effect must be recorded and by way of a complaint in writing to a Magistrate of First Class having jurisdiction and further proceedings must be pursued by the learned Magistrate. In the case on hand, the learned Principal Sessions Judge on receipt of the complaints from the respondents directly issued a notice to the petitioner without even conducting a preliminary enquiry. Therefore, the said notices issued to the petitioner is liable to be quashed.

To substantiate his contentions the learned Counsel for the petitioner relied on a case, reported in Pritish Vs. State of Maharashtra and Others, and contended that the purpose of preliminary enquiry is not to find whether the person is guilty or not, but is only to decide whether it is acceptable in the interest of justice to enquire into the offence.

Per contra the learned Counsel for the respondents submits that a preliminary enquiry is not at all necessary. Further, even before forwarding the complaint for adjudication before the learned Magistrate having jurisdiction, the Principal Sessions Judge himself can issue notice to the petitioner while conducting an enquiry. To substantiate the said contention the learned Counsel for the respondent relied on K. Karunakaran Vs. T.V. Eachara Warrier and Another, , wherein it has been held as follows:

An enquiry, when made, u/s 340(1) Cr. P. C. is really in the nature of affording a locus paenitentiate to a person and if at that stage the Court chooses to take action, it does not mean that he will not have full and adequate opportunity in due course of the process of justice to establish his innocence.

In addition to this, the learned Counsel for the respondents relied on the following judgments:

(1) Madan Lal Sharma Vs. Punjab and Haryana High Court Thr. Its Registrar,

(2) AIR 1930 Lahore 55 (Jagat Singh v. Emperor)

(3) Varadarajulu Naidu Vs. Emperor,

(4) AIR 1970 AP 110 (Nimmakayala Audi Narrayanamma v. State of Andhra Pradesh)

(5) M. Liaqat Husain Vs. Vinay Prakash and Another,

(6) AIR 1924 All 435 (Imam Ali and Anr. v. Emperor)

The learned Counsel for the respondents submits that there is no illegality or irregularity in issuing the impugned notice to the petitioner and therefore, these petitions are liable to be dismissed.

Heard the learned Counsel on both sides and perused the records.

The present complaints were preferred before the learned Principal Sessions Judge in a pending proceedings for an offence u/s 138 of the Negotiable Instruments Act. Admittedly, the cheque amounts in both the cases were paid by the petitioner to the respondents. However, the proceedings are pending before the learned Magistrate. When the transfer applications were filed before the learned Principal Sessions Judge, certain misrepresentations were made, which led to the filing the present complaints by the respondents against the petitioner. Though the learned Counsel for the respondents relied on K. Karunakaran Vs. T.V. Eachara Warrier and Another, and several other judgments of various other High Courts, the point involved in these cases has been discussed in the recent judgment cited by the learned Counsel for the petitioner in Pritish Vs. State of Maharashtra and Others, , wherein it has been held as follows:

Thus, the person against whom the complaint is made has a, legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the Magistrate that the allegations against him are groundless and that he is entitled to be discharged.

The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that Court might file a complaint before the Magistrate for initiating prosecution proceedings.

Be it noted that the Court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. At that stage the Court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M.S. Sheriff v. State of Madras 1954 Cri LJ 1019 a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the Court while passing an order u/s 340 of the Code. An exercise of the Court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the Court could then decide on the materials available that the matter requires inquiry by a Criminal Court and that it is expedient in the interest of justice to have it inquired into.

The would-be accused is not necessary for the Court to decide the question of expediency in the interest of justice that an inquiry should be held.

Since the point to be adjudicated in these petitions has been emphatically answered by the recent Supreme Court judgment, I am of the considered view that the impugned notices issued by the learned Principal Sessions Judge is liable to be quashed and accordingly, the same are quashed.

These Criminal Original Petitions are allowed. Connected Miscellaneous Petitions are closed.