R/CR.RA/213/2016 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL REVISION APPLICATION NO. 213 of 2016 FOR APPROVAL AND SIGNATURE: HONOURABLE MS. JUSTICE BELA M. TRIVEDI Sd/- ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO ========================================================== YOGESH PREMJIBHAI SUVARIYA & 1 other(s) Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance: MEET M THAKKAR(7766) for the Applicant(s) No. 1,2 MR. JAY M THAKKAR(6677) for the Applicant(s) No. 1,2 MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 2 MS CM SHAH, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI Date : 24/03/2021 CAV JUDGMENT 1. The present Revision Application is directed against the order dated 08.02.2016 passed by the Additional Chief Judicial Magistrate, Anjar, Kutch in R/CR.RA/213/2016 CAV JUDGMENT Criminal Case No. 584 of 2012, whereby the trial Court has rejected the application at Exh. 17 filed by the accused (petitioners herein) seeking their discharge from the case under Section 239 of the Criminal Procedure Code (hereinafter referred to as “the Code”). 2. The short facts giving rise to the present Revision Application are that the complainant Anilbhai S/o Vashrambhai Savadiya had lodged a complaint against the present petitionersaccused alleging inter alia that the petitioners had placed two orders with the complainant on 14.11.2011 and 21.11.2011 for the purchase of 293 metric tonnes of TMT Steel Bars, against which they had given ten cheques amounting to Rs. 1.19 Crores. Accordingly, the complainant had delivered the goods on various dates in November, 2011. Thereafter, the cheques given by the petitioners were presented in the Bank by the complainant, however all the ten cheques had returned dishonored with the endorsement “insufficient balance”. It was further alleged that since the petitionersaccused had not paid the amount of cheques and committed cheating and breach of R/CR.RA/213/2016 CAV JUDGMENT trust, the complainant had filed complaints under Section 138 of the Negotiable Instruments Act, and that the present complaint was filed for the offences under Section 406, 420 and 114 of IPC. The Investigating Officer after the completion of the investigation, had filed a chargesheet on 03.05.2012 before the trial Court, which was registered as the Criminal Case No. 584 of 2012. On 05.08.2015, the petitioners preferred an application under Section 239 of Cr.P.C seeking their discharge from the case, which has been dismissed by the trial Court vide the impugned order. Being aggrieved by the said order, the present Revision Application has been filed under Section 397(1) of the Code. 3. At the outset, the learned Advocate Mr. Anuj Trivedi appearing for the respondent No. 2 complainant raised a preliminary objection as regards the maintainability of the Revision Application by submitting that the impugned order being an interlocutory order, the Revision Application was barred under Section 397(2) of Code. The learned Advocate Mr. Jay Thakkar appearing for the petitioners, in response thereto placed heavy R/CR.RA/213/2016 CAV JUDGMENT reliance on various decisions of the Supreme Court to submit that the impugned order could not be said to be an interlocutory order and therefore the Revision Application against the same was maintainable. 4. The sheet anchor of the arguments of the learned Advocate Mr.Thakkar appearing for the petitioners was that the term “interlocutory” used in Section 397(2) of the Code is used in restricted sense and not in very broad or artistic sense. It merely denotes the orders of a purely interim or temporary nature, which do not decide or touch the important rights or liabilities of the parties. Since vide the impugned order passed by the trial Court, the important right of the petitionersaccused to get discharge from the case has been affected, the said order could not be said to be an interlocutory order. Learned Advocate Mr. Thakkar to buttress his submissions has placed reliance on the decisions of the Supreme Court in cases of Amar Nath and Others versus State of Haryana and Another reported in AIR 1977 SC 2185, Madhu Limaye versus State of Maharashtra reported in AIR 1978 SC 47 and in case of Parmeshwari Devi versus State and Anr. reported in R/CR.RA/213/2016 CAV JUDGMENT AIR 1977 SC 403. Distinguishing the observations made by the Supreme Court in case of V.C. Shukla versus State through CBI reported in 1980 AIR 962, relied upon by Mr.Anuj Trivedi, Mr.Thakkar empathetically submitted that in the said judgment, the Supreme Court was dealing with the issue of maintainability of the appeal under Section 11(1) of the Special Court's Act, 1979, which barred the filing of the appeal against an interlocutory order and that it had different connotation from the one under Section 397(2) of the Code. 5. In order to appreciate the submissions made by the learned Advocates for the parties on the issue as to whether the impugned order could be termed as an “interlocutory order”, so as to attract the bar under Section 397(2) of the Code, it would be beneficial to reproduce the relevant provision, which reads as under: “397. Calling for records to exercise powers of revision. (1) xxx (2) The powers of revision conferred by sub section (1) shall not be exercised in relation R/CR.RA/213/2016 CAV JUDGMENT to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.” 6. The Supreme Court in catena of decisions has interpreted the term”interlocutory order” in the context of Section 397(2) of the Code. In case of Amar Nath and Others (supra) on which learned Advocate Mr. Thakkar has placed heavy reliance, the order under challenge was the order of the Judicial Magistrate summoning the appellantsaccused in the said case. The Supreme Court upholding the view taken by the High Court to the effect that where a revision of the High Court against the order of the Subordinate Court is expressly barred under sub Section (2) of Section 397 of the Code, the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). The Supreme Court examined in detail the phrase “interlocutory order” qua the revisional jurisdiction, and after considering the Statement of Objects and Reasons of incorporating Section 397(2) in the Code, interpreted the said provision as under: “6. Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub section (2) of Section 397 of the 1973 Code may be extracted R/CR.RA/213/2016 CAV JUDGMENT thus : "The powers of revision conferred by Sub section (1) shall not be exercised in relation to any interlocutory order passed ;in any appeal, inquiry, trial or other proceeding." The main question which falls for determination in this appeal is as to, what is the connotation of the term "interlocutory order" as appearing in subs. (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide 'the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the, 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the R/CR.RA/213/2016 CAV JUDGMENT 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.” 7. At this juncture, it would be also very relevant to mention that the Supreme Court in the said case considered the factual matrix in paragraph 10 for coming to the conclusion that the impugned order in the said case cannot be held to be an interlocutory order which had substantially affected the rights of the appellants accused to be put on trial. The paragraph 10 thereof reads as under: “10. Applying the aforesaid tests, let us now see whether the order impugned in the instant case can be said to be an interlocutory order as held by the High Court. In the first place, so far as the appellants are concerned, the police had submitted its final report against them and they were released by the Judicial Magistrate. A revision against that order to the Additional Sessions Judge preferred by the complainant had failed. Thus the appellants, by virtue of the order of the Judicial Magistrate as affirmed by the Additional Sessions Judge, acquired a valuable right of not being put on trial unless a proper order was made against them. Then came the complaint by respondent No. 2 before the Judicial Magistrate which was also dismissed on merits. The Sessions Judge in revision, however, set aside the order dismissing the complaint and ordered further inquiry. The Magistrate on receiving the order of the Sessions Judge summoned the appellants straightaway which meant R/CR.RA/213/2016 CAV JUDGMENT that the appellants were to be put on trial. So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of their's was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order which could not be revised by the High Court under subsections (1) and (2) of Section 397 of the 1973 Code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded, was undoubtedly a matter of moment, and a valuable right of the appellants had been taken away by the Magistrate's passing an order prima facie in a mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial.“ 8. From the aforestated facts, it is very clear that the accused in the said case were, at the first instance already released by the Judicial Magistrate, R/CR.RA/213/2016 CAV JUDGMENT on accepting the final report of the Police, and a revision application against that order to the Additional Sessions Judge preferred by the complainant, had also failed. The Supreme Court therefore, observed that by virtue of the order of the Judicial Magistrate as affirmed by the Additional Sessions Judge, the appellantsaccused had acquired valuable rights of not being put on trial, unless a proper order was made against them. Thereafter, the complaint filed by the complainant before the Judicial Magistrate was also dismissed on merits. However, the Sessions Court in Revision set aside the order of dismissing the complaint and ordered further inquiry. The Magistrate thereafter summoned the appellantsaccused for putting them on trial. In the back ground of these facts, the Supreme Court observed that the valuable right which the appellantsaccused had possessed, was being denied to them by the impugned order of summoning them and therefore the said order could not be termed as an interlocutory order. 9. The observations made by the Supreme Court in the said case of Amar Nath (supra) came to be R/CR.RA/213/2016 CAV JUDGMENT reconsidered by the three Judges Bench of the Supreme Court in case of Madhu Limaye (supra). In the case of Madhu Limaye (supra), the appellantaccused had filed an application before the Sessions Court to dismiss the complaint filed against him on the ground that the Court had no jurisdiction to entertain the complaint. In the application, various other contentions were also raised with regard to the validity and legality of the trial. The Sessions Court rejected all the contentions and framed the charges against the appellantsaccused, which order was challenged in the High Court by way of Revision. The High Court upheld the preliminary objection as to the maintainability of the Revision Application filed under Section 397 of the Code, which order was challenged before the Supreme Court. The Supreme Court reiterated the view taken by the Court in the case of Amar Nath (supra), however in modified and modulated form, the Supreme Court while reaffirming the decision of the Court in the case of Amar Nath (supra) observed that the impugned order of the Magistrate was not an interlocutory order, and found that the statement of law laid down in the case of R/CR.RA/213/2016 CAV JUDGMENT Amar Nath (supra) to the effect that where a revision to the High Court against the order of the subordinate judge is expressly barred under sub Section (2) of Section 397 of the Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2), was not quite accurate and needed some modulation. The Supreme Court thereafter proceeded to examine as to what was the correct position of law after the introduction of the provisions like sub Section (2) of Section 397 of the Code. The Supreme Court after discussing various earlier decisions including the decision in the case of Amar Nath (supra) observed in paragraphs 16 and 17 as under: “16. We may also refer to the decision of this Court in Parmeshwari Devi v. State and Anr.(1) that an order made in a criminal proceeding against a person who is not a party to the enquiry or trial and which adversely affected him is not an interlocutory order within the meaning of section 397 (2). Referring to a passage from the decision of this Court in Mohan Lals case the passage which is to be found in Halsbury's Laws of England, Volume 22, it has been said by Shinghal J., delivering the judgment of the Court, at page 164 : "It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person who is not a party to the enquiry or trial, against whom it is R/CR.RA/213/2016 CAV JUDGMENT directed." As already mentioned, the view expressed in Mohan Lal's case may be open to debate or difference. One such example is to be found in the decision of this Court in Prakash Chand Agarwal & Ors. v. M/s Hindustan Steel Ltd., wherein it was held that an order of the High Court setting aside an exparte decree in the suit and restoring the suit to the file of the Trial Court is not a final order within the meaning of Article 133. It is to be noticed that if the High Court would have refused to set aside the exparte decree, the proceeding for setting it aside would have finally ended and on some of the principles culled out by the majority in Mohan Lars case, such an order would have been a final order. We are, however, not under any necessity to enter into this controversial arena. In our opinion whether the type of the order aforesaid would be a final order or not, surely it will not be an interlocutory order within the meaning of sub section (2) of section 397 of the 1973 Code. 17.Before we conclude we may point out an obvious, almost insurmountable, difficulty in the way of applying literally the test laid down in Kuppuswami Rao's case and in holding that an order of the kind under consideration being not a final order must necessarily be an interlocutory one. If a complaint is dismissed under section 203 or under section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Section 398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a complaint or otherwise and which is fit to be quashed on the face of it? The legislature left the power to order further inquiry intact in R/CR.RA/213/2016 CAV JUDGMENT Section 398. Is it not, then, in consonance with the sense of justice to leave intact the remedy of the accused to move the High Court for setting aside the order adversely made against him in similar circumstances and to quash the proceeding? The answer must be given in favour of the just and reasonable view expressed by us above.” 10. The expression “interlocutory order” incorporated in Section 397(2) of the Code again came up for consideration before the four Judges Bench of the Supreme Court in case of V.C. Shukla (supra), in the context of Section 11 of the Special Courts Act. In the said case, the appeal was directed against the order passed by the Special Judge appointed under the Special Courts Act, 1979 by which the Special Judge had directed a charge to be framed against the appellantaccused under Section 120B of IPC read with Section 5(1) and 5(2) of the Prevention of Corruption Act as also under Section 5(2) read with Section 5(1) (d) of the said Act. On the preliminary hearing of the appeal before the Division Bench of the Supreme Court, a preliminary objection as to the maintainability of the appeal was raised by the Solicitor General of India on the ground that the order impugned being purely an interlocutory order R/CR.RA/213/2016 CAV JUDGMENT within the meaning of Section 11(1) of the Special Courts Act, the appeal was not maintainable. The Division Bench in view of the nature of the substantial question of law involved, referred the case to the larger Bench and the larger Bench considered the expression “interlocutory order” contained in Section 397(2) of the Code as also in Section 11 of the Special Courts Act. The larger Bench after considering the decision in the case of Amar Nath (supra), Madhu Limaye (supra) and many other cases laid down the propositions as contained in para. 33 thereof: “33. There is yet another aspect of the matter which has to be concerned so far as this decision is considered, to which we shall advert when we t deal] with the last plank of the argument of the learned counsel for the appellant. Suffice it to say at the moment that the case referred to also fully endorses the view taken by the Federal Court and the English decisions, viz., that an order is not a final but all interlocutory one if it does not determine or decide the rights of parties once for all. Thus, on a consideration of the authorities, mentioned above, the. following proposition emerge: (1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order; (2) that the concept of interlocutory order has R/CR.RA/213/2016 CAV JUDGMENT to be ex plained. in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order; (3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders; (4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter; (5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without 425 any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order. framing charges, the Act. works serious injustice to the accused.” 11. The Supreme Court thereafter proceeded on applying the said test to the impugned order and held inter alia that the order of framing of charges is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until R/CR.RA/213/2016 CAV JUDGMENT it culminates in acquittal or conviction. To be precise the observations made in para. 34 in this regard read as under: “34. Applying these tests to the order impugned we find that the order framing of the charges is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. It is true that if the Special Court would have refused to frame charges and discharged the accused, the proceedings would have 'terminated' but that is only one side of the picture. The other side of the picture is that if the Special Court refused to discharge the accused and framed charges against him, then the order would be interlocutory because the trial would still be alive. Mr. Mridul tried to repel the argument of the Solicitor General and explained the decisions, referred to above, on the ground that the English decisions as also the Federal Court's decisions made the observations while interpreting the provisions of the Government of India Act or the provisions of the Constitution where the word "final" order was expressly used. It was urged that the same construction would not apply to the present case where the word 'order' is not qualified by the word 'final'. With due respect to the learned counsel, in our opinion, the distinction sought to be drawn is a distinction without and difference. This court as also the Federal Court have clearly pointed out that so far as the tests to be applied to determine whether an order is final or interlocutory, apply as much to a civil case as to a criminal case. Furthermore, as already indicated, it is impossible to spell out the concept of an interlocutory order unless it is understood in contradistinction to or in contrast with a final order. This was held in a number of cases referred to, including Madhu Limaye's case (supra) which has been expressly stressed by us in an earlier part of the R/CR.RA/213/2016 CAV JUDGMENT judgement. For these reasons, therefore, the contention of the learned counsel for the appellant on this aspect of the matter fails and is hereby overruled. ” 12. In the last the larger Bench observed in the context of Section 11 of the Special Courts Act as under: “44. On a true construction of Section 11(1) of the Act and taking into consideration the natural meaning of the expression 'interlocutory order', there can be no doubt that the order framing charges against the appellant under the Act was merely an interlocutory order which neither terminated the proceedings nor finally decided the rights of the parties. According to the test laid down in Kuppuswami's case (supra) the order impugned was undoubtedly an interlocutory order. Taking into consideration, therefore, the natural meaning of interlocutory order and applying the non obstante clause, the position is that the provisions of the Code of Criminal Procedure are expressly excluded by the non obstante clause and therefore section 397(2) of the Code cannot be called into aid in order to hold that the order impugned is not an interlocutory order. As the decisions of this Court in the cases of Madhu Limaye and Amarnath & Ors. v. State of Haryana & Ors. were given with respect to the provisions of the Code, particularly section 397(2), they were correctly decided and would have no application to the interpretation of section 11(1) of the Act, which expressly excludes the provisions of the Code of Criminal Procedure by virtue of the non obstante clause.” 13. In view of the above, though it is true that in the aforestated judgment of V.C. Shukla (supra), the Supreme Court, while interpreting Section 11(1) of R/CR.RA/213/2016 CAV JUDGMENT the Special Courts Act and considering the natural meaning of the expression “interlocutory order”, held that the order like framing of charges was an interlocutory order against which the appeal under Section 11(1) of the Special Courts Act was not maintainable, the Supreme Court had elaborately considered the bar contained in Section 397(2) of the Code and held that the order of framing of charges is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. In view of the said specific ratio laid down by the Supreme Court, the Court has no hesitation in holding that in the instant case the impugned order rejecting the application of the applicants seeking discharge under Section 239 of the Code being an interlocutory order, as it does not terminate the proceedings, the revision application under Section 397(2) of the Code is barred. The present application therefore deserves to be dismissed on the ground of nonmaintainability alone, nonetheless even if it is held to be maintainable, the Court does not find any substance in the merits of the revision application. R/CR.RA/213/2016 CAV JUDGMENT 14. Though the learned Advocate Mr. Jay Thakkar had initially sought to submit that the respondent complainant having filed the complaint under Section 138 of the Negotiable Instruments Act, the present complaint for the offences under the IPC was not maintainable, during the course of his oral submissions, he had fairly conceded that in view of the decision in case of Sangeetaben Mahendrabhai Patel vs State Of Gujarat & Anr reported in (2012) 7 SCC 621, even if the accused was tried earlier for the offences punishable under Section 138 of the Negotiable Instruments Act, the complaint for the offences punishable under Sections 406 and 420 of IPC would be maintainable. The Supreme Court in the said case had held as under: “37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Section 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. Page 20 of 28 R/CR.RA/213/2016 CAV JUDGMENT 38. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary. 39. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.” 15. As regards the merits of the case, learned Advocate Mr.Thakkar had submitted that there was no prima facie case made out against the petitioners for the alleged offences under Sections 406 and 420 of IPC. According to him, the dispute between the parties is essentially of a Civil Nature, as non payment or underpayment of the prices of the goods by itself would not amount to commission of offences of cheating or criminal breach of trust. Placing heavy reliance on the decision of this Court in case of Vir Prakash Sharma Vs. Anil Kumar Agarwal reported in (2007) 3 GLH 182, he submitted that mere nonpayment R/CR.RA/213/2016 CAV JUDGMENT of prices for the goods purchased would not amount to criminal breach of trust or cheating. Reliance was also placed by learned Advocate Mr. Thakkar on the decision of the Supreme Court in case of Lalitbhai Bhanubhai Limbasia versus State of Gujarat reported in (2004) 4 GLR 3233 in which the accused was discharged by this Court holding that the transaction between the buyer and the seller did not amount to offences under Section 406 or 420 of IPC. In the last plank of his arguments, Mr. Thakkar submitted that one another FIR was filed against the petitioner no. 1 on the basis of similar allegations and the said FIR was quashed by this Court in Criminal Misc. Application No. 13233 of 2012 by holding that prima facie the dispute was in respect of the nonpayment of dues of the complainant which can be said to be dues of unpaid seller. 16. Per contra learned Advocate Mr. Anuj Trivedi appearing for the respondent no. 2 taking the Court to the papers of chargesheet submitted that the petitioners were entrusted with the properties of the respondent No. 2 on the basis of a legal contract, however the petitioners sold the said properties R/CR.RA/213/2016 CAV JUDGMENT (goods) to a third party and unjustly enriched themselves, and willfully chose not to make payment to the respondent No. 2, which clearly satisfied the ingredients of the offences under Section 406 of IPC. Similarly, from the papers of the chargesheet, it is made out that the respondent no. 2 was induced by the petitioners to deliver the goods by false assurances and promises, and they having intentionally deceived the respondent No. 2, the offence under Section 420 of IPC was also made out. Learned Advocate Mr. Trivedi has placed reliance upon the decision of the Supreme Court in case of Rajesh Bajaj Versus State NCT of Delhi and Ors., reported in (1999) 3 SCC 259 to submit that the complaint cannot be quashed merely because one or two ingredients of the offences have not been stated in detail. Reliance is also placed on the decision of the Supreme Court in the case of Dr. Laksman versus State of Karnataka and Ors. reported in (2019) 9 SCC 677 to submit that mere filing of the complaint under Section 138 of the Negotiable Instruments Act is no ground to quash the proceedings. Learned Advocate Mr. Trivedi has also relied upon the decision of the State of M.P. R/CR.RA/213/2016 CAV JUDGMENT versus S.B. Johari reported in (2000) 2 SCC 57 to submit that the Court has to only see at the time of framing charge as to whether any prima facie case was made out against the accused to proceed against the accused, and cannot appreciate the evidence or material produced by the prosecution. Learned Advocate Mr. Trivedi had lastly distinguished the judgments relied upon by the learned Advocate Mr. Thakkar for the petitioners and submitted that none of the said judgments had any application to the facts of the present case. 17. In the opinion of the Court, the law as regards the issue of framing the charge against the accused is quite well settled. The Supreme Court while considering Section 227 of Cr. P.C., laid down following principles in case of Union of India Vs. Prafulla Kumar Samal, reported in (1979) 3 SCC 4 : "10. Thus, a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused R/CR.RA/213/2016 CAV JUDGMENT has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 18. In the case of State of M.P. versus S B Johari and Ors. (supra), the Supreme Court held that at the stage of framing of charge the Court has to prima facie consider whether there is sufficient ground for R/CR.RA/213/2016 CAV JUDGMENT proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that prima facie case is made out for proceeding further, then a charge has to be framed. The precise observations made by the Supreme Court in the said case are reproduced as under: "4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and R/CR.RA/213/2016 CAV JUDGMENT 228 Cr.P.C., the Court posed a question, whether at the stage of framing the charge, trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274, and held thus: "From the above discussion it seems well settled that at the Sections 227228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." 19. In the instant case, the trial Court from the material on record had found that there was sufficient material against the petitioners – accused to frame charge against them and that the charge against the accused could not be said to be R/CR.RA/213/2016 CAV JUDGMENT groundless so as to discharge them under Section 239 of Cr. P.C.. This Court at this juncture is not required to evaluate the material and documents on record in detail. Suffice it to say that the material on record prima facie discloses the existence of the ingredients constituting the alleged offences under Section 406 and Section 420 of IPC. The impugned order passed by the Court below is just and proper and does not call for any interference. 20. In that view of the matter, the present Revision Application being devoid of merits, is dismissed. It appears that the trial has not proceeded further because of the pendency of this Revision Application though there was no stay granted by this Court. Hence, the trial is directed to be expedited. The R & P, if any, be sent back forthwith. Sd/ (BELA M. TRIVEDI, J) SINDHU/V.V.P. PODUVAL

YOGESH PREMJIBHAI SUVARIYA v. STATE OF GUJARAT

Judgment text