2011 ALL MR (Cri) 2238
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
J.H. BHATIA, J.
Jogen C. Thakkar Vs. State Of Maharashtra & Ors.
Criminal Writ Petition No.874 of 2009
20th April, 2011
Petitioner Counsel: Mr. MAHESH LONDHE,M/s. Sanjay Udeshi & Co.
Respondent Counsel: Ms. U. V. KEJRIWAL,Mr. R. SATHYANARAYANAN
Criminal P.C. (1973), S.319 - Power to proceed against other persons appearing to be guilty of offence - Invocation of S.319 - To invoke powers under S.319 and to make a person accused during pendency of the trial, there should be exceptional and extraordinary circumstances. 2009 ALL MR (Cri) 3148 (S.C.) and 2007 ALL SCR 1493 - Rel. on. (Para 8)
2. Respondent No.2 is the original complainant and the respondent Nos.3 to 8 are the original accused Nos.1 to 6 in Case No.251/S of 1997 pending before the Metropolitan Magistrate, 13th Court, Bhoiwada at Mumbai. According to the complainant, the accused Nos.1 to 6 by the prospectus distributed through M/s. Chandrakant & Brothers, Real Estate, Project Management & Consultants offered for sale to the complainant plot No.64 admesauring 40,000 sq. ft. for farm house at Panvel. The complainant agreed to purchase the said plot No.64 for consideration of Rs.2,80,000/-. The payment was to be made by monthly instalments. Out of the total consideration amount, a sum of Rs.2,05,000/- was paid by the complainant to accused No.1 firm through its partner accused No.2 and through petitioner Jogen C. Thakker, a partner of M/s. Chandrakant & Bros. upon the assurance given by the accused persons in the prospectus in respect of the said plot No.64. However, accused Nos.1 to 6 failed to execute even the agreement for sale and also conveyance deed. A letter was issued to accused No.1 on 31.10.1992 calling upon the accused No.1 firm to execute the sale deed. Copy of that letter was also sent to the petitioner Jogen C. Thakker. However, they failed to execute any document or agreement for sale because accused Nos. 1 to 6 had no conveyance or title of plot No.64. In the complaint, petitioner Jogen C. Thakker and Chandrakant Thakker, who were the partners of M/s. Chandrakant & Bros., were shown as witnesses. After appearance of the accused persons, the complainant was called upon to lead evidence before framing of charge. The complainant examined herself as prosecution witness No.1 and deposed as per the allegations in the complaint. In her evidence, she proved the signatures of the present applicant on the receipts issued by him about the payments made by cheque. As receipts were issued by the petitioner at that stage, on behalf of the complainant, an application was made before the learned Magistrate to take action against the present petitioner as an accused under Sec.319, Cr.P.C.. It appears that after hearing the Advocates for the complainant and the accused Nos.1 to 6, the Metropolitan Magistrate issued process against Chandrakant C. Thakker and the present petitioner Jogen C.Thakkar by making following observations :
"As per the evidence on record, two partners of M/s. Chandrakant Brothers were involved and there is evidence against them prima facie. They were not included in the complaint. Hence, process was not issued against them."
From this, it appears that the learned Magistrate found that prima facie,there is a evidence against two partners of M/s. Chandrakant & Brothers and therefore it was necessary to issue process against them.
3. The order issuing process was challenged by the present applicant by filing Revision Application before the Sessions Court. That application was rejected. Therefore, the petitioner has filed this writ petition.
4. The learned Counsel for the parties informed that Chandrakant Thakkar is no more alive and therefore, only Jogen Thakker, who is one of the partners of M/s. Chandrakant & Bros. has filed this petition.
5. The learned Counsel for the petitioner vehemently contended that all the facts stated by the complainant in her evidence before the trial Court, recorded before framing of charge, also find place in the complaint and all the facts were well known to the complainant and her lawyer, who had drafted the complaint. With full knowledge of the facts the complainant filed complaint only against accused Nos.1 to 6 and the present applicant was shown as a witness in the complaint. According to the learned Counsel to invoke powers under Sec.319 and to make a person accused during pendency of the trial, there should be exceptional and extraordinary circumstances. According to him, there is no such circumstance. Further, according to him, the present petitioner had signed the receipts about payments made by cheques and the cheques were drawn in favour of accused No.1 M/s. Labdhi Promoters and Developers, a partnership firm of accused Nos. 2 to 6. Thus, the present petitioner, as the partner of M/s. Chandrakant & Bros. being the Real Estate Management and Consultants, had received the cheques issued by the complainant in favour of accused No.1 for and on behalf of accused No.1. The cheques were honoured and amounts were credited in the account of accused No.1. Merely because the present petitioner had received the cheques and signed the receipts as consultants, he cannot be said to have committed offence under Sec. 420, etc.
6. In support of his contention, the learned Counsel for the petitioner relied upon Sarabjit Singh & Anr. Vs. State of Punjab & Anr., 2009 ALL MR (Cri) 3148 (S.C.). In that case the Supreme Court referred to several earlier authorities wherein Sec. 319 Cr. P.C. was interpreted. Sec. 319, Cr.P.C. reads thus:
"319. Power to proceed against other persons appearing to be guilty of offence - (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
From the language of Section 319(1), it is clear that where, in the course of any inquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed and may issue process against him.
"This Court in Lok Pal Vs. Nihal Singh [(2006)10 SCC 192] observed :
"....The court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors, including those noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused."
It was further observed :
"19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken...."
"The decision of this Court in Mohd. Shafi (supra), however, has been explained in Lal Suraj @ Suraj Singh and Anr. Vs. State of Jharkhand [2008(16) SCALE 276 : 2007 ALL MR (Cri) 2976 (S.C.)], stating :
".... The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction."
After referring to the observations in Y. Saraba Reddy Vs. Puthur Rami Reddy and Anr. [JT 2007(6) SC 460 : [2007 ALL SCR 1493], the Supreme Court observed thus in para 18 of Sarabjit Singh, [2009 ALL MR (Cri) 3148 (S.C.)] (supra):-
"18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extra-ordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied."
8. In the present case, the complainant had clearly stated all the facts leading to the filing of complaint. The complaint itself disclosed that M/s. Chandrakant & Bros. was a partnership firm and was Real Estate Management & Consultants. The accused Nos.1 to 6 had issued the prospectus and distributed through Chandrakant & Bros. Accused Nos.1 to 6 had represented that they had tile over the disputed plot No.64 which they had offered for sale. The complainant had agreed to purchase the plot from accused Nos.1 to 6 for consideration of Rs.2,80,000/-. Out of the consideration amount, an amount of Rs.2,05,000/- was paid by the complainant to accused No.1 by cheque. As the accused No.1 is a firm, payments were made through accused No.2 who is a partner of accused No.1 and the present petitioner who is a partner of M/s. Chandrakant & Bros. In her evidence, the complainant deposed that she had also made payment of Rs.2 lakhs in cash for which there is no documentary evidence nor that fact was pleaded in the complaint. She proved that 15 receipts were issued under the signature of the present petitioner about the payments made by cheques. Even her evidence showed that cheques were issued in the name of accused No.1. Those cheques were honoured and the amounts were credited in the account of accused No.1. It means that the present petitioner had received those cheques only as a consultant or as an agent for the accused Nos. 1 to 6. The present petitioner had not received any amount from the complainant. Merely because he had signed the receipts for payment made by cheques in favour of his client i.e. the accused No.1, the petitioner cannot be held to be guilty for the offence under Sec.420 of IPC. In view of the facts and circumstances, the complainant chose to file the complaint only against accused Nos.1 to 6 and showed the name of the present petitioner as a witness in that matter. On the basis of the same facts, deposed in the evidence before the Court, it could not be said that some new facts or evidence had come before the Court, on the basis of which it had become necessary to take action under Sec. 319, Cr.P.C.. Certainly, the evidence is not of such a nature that if unrebutted, conviction must follow, nor it was an extraordinary case and it was not necessary for the trial Court to exercise the jurisdiction under Sec.319 of Cr.P.C. to summon the petitioner as an accused in the case in which he was shown as a witness. It appears that the learned trial Court was swayed away only by the fact that the receipts were signed by the petitioner without looking to the contents of the receipts or to the fact that the receipts were about the payments made by cheques in favour of accused No.1 and not in favour of the petitioner or his firm of M/s. Chandrakant & Brothers.