While strongly disapproving the summoning of accused in a civil case by Magistrates, the Apex Court has in a pragmatic, progressive and pertinent judgment titled Deepak Gaba and Ors Vs State of Uttar Pradesh in 2023 Latest Case Law 1 SC that was pronounced as recently as on January, 2, 2023 held clearly that the Magistrates must remain vigilant against summoning of accused in a civil case given a criminal colour.
It must be mentioned here that the Division Bench comprising of Hon’ble Mr Justice Sanjiv Khanna and Hon’ble Mr Justice JK Maheshwari minced just no words to clearly state that summoning order should not be passed lightly or as a matter of course and when the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities.
The Bench while rightly taking a serious note mentioned that in a number of cases, the Court has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claim. The Bench also underscored that these attempts are not to be entertained and should be dismissed at the threshold while referring to the relevant case law titled Thermax Limited and Others v. KM Johny.
At the very outset, this latest, learned, laudable, landmark and logical judgment authored by Hon’ble Mr Justice Sanjiv Khanna for a Bench of Apex Court comprising of himself and Hon’ble Mr JK Maheshwari sets the ball in motion by first and foremost putting forth in para 1 that:
This appeal by Jotun India Private Limited (JIPL), Deepak Gaba - Regional Sales Manager - North (Decorative), and Sanjay Ramachandran Nair - Sales and Marketing Director (Decorative), takes exception to the order dated 30th March 2022, whereby the High Court of Judicature at Allahabad has dismissed their petition under Section 482 of the Code of Criminal Procedure, 19731, challenging the summoning order dated 19th July 2018 passed by the Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad, Uttar Pradesh, the operative portion of which, reads as under:
On the basis of evidence available on records and on the basis of statement of Complainant, the charge is appearing prima facie regarding showing forged demand of Rs. 6,37,252.16 against the Complainant by the Opponents Manager Jotun India Pvt. Ltd. Delhi, Chief Manager Jotun India Pvt. Ltd. Andheri East, Mumbai. Hence, the Opponents Manager Jotun India Pvt. Ltd. through Chief Manager Jotun India Pvt. ltd. Andheri East, Mumbai is liable to (be) summoned for trial in section 406 I.P.C. for trial prima facie. (emphasis supplied).
Quite glaringly, the Bench discloses in para 3 that:
The Manager and the Chief Manager, JIPL have not been named and identified in the complaint. Neither does the summoning order name the Manager or the Chief Manager, JIPL, who have been summoned to stand trial under Section 406 of the Indian Penal Code, 1860 (For short, the ‘IPC’).
Needless to say, the Bench specifies in para 4 that:
It is an accepted and admitted position that JIPL is a company incorporated under the laws of India and is a part of multinational group mainly dealing in decorative paints and performance coatings (marine, protective and powder coatings). JIPL and Shubhankar P. Tomar, the proprietor of respondent no. 2 - complainant, Ghaziabad, Uttar Pradesh, had entered into dealership agreements (The dates of execution of these agreements are disputed.
As per the appellants, the agreements are dated 11th April 2012 and 27th October 2013. As per respondent No. 2 - complainant, the agreements were executed on 20th March 2012 and 30th January 2013. The complaint filed by respondent no. 2 - complainant refers to a third agreement dated 16th May 2014. In the counter affidavit filed by respondent no. 2 - complainant before this court, execution of the agreement dated 20th March 2012 is accepted. It is stated that despite repeated protests, a copy of the agreement dated 20th March 2012 was not furnished to respondent no. 2 - complainant. However, no such assertion is made with regard to the agreement dated 30th January 2013 and 16th May 2014. In fact, an extract of the agreement dated 16th May 2014 is enclosed as Annexure R2/5 to the counter affidavit.
The appellants have relied on the clauses of the agreement dated 11th April 2012 enclosed as Annexure P-1, as per which the dealer had agreed to deliver the products to JIPL's direct clients, when requested enclosed as Annexure P-1, as per which the dealer had agreed to deliver the products to JIPL’s direct clients, when requested and if within a reasonable distance from the location of the dealer. Another clause permitted JIPL to enter into a direct contractual relationship with specific customers, if in the opinion of JIPL they could be served better by JIPL.
In such situations the dealer had option to act as an intermediary. The agreement has several clauses relating to prices, invoice and payment. For the purpose of this decision, we are not required to examine and decide these controversies and disputes.), for supply and purchase of decorative paints in the State of Uttar Pradesh and Delhi region respectively.
To put things in perspective, the Bench then envisages in para 5 that:
On 27th September 2016, JIPL filed two separate criminal complaints under Section 138 of the Negotiable Instruments Act, 18816 against Shubhankar P. Tomar, on account of dishonour of cheque no. 463151 drawn on Canara Bank, Patparganj Branch, Delhi for Rs. 4,99,610/-, and cheque no. 003252 drawn on HDFC Bank, Chander Nagar, Ghaziabad, Uttar Pradesh for Rs. 1,93,776/-, both dated 8th August 2016. As per the complaints, the cheques were drawn by respondent no. 2 - complainant for discharge of the outstanding amount payable by him to JIPL.
The cheques on presentation were dishonoured due to ‘insufficient funds’ vide memo issued by the respective banks on 12th August 2016. Thereupon, legal notice of demand was issued on behalf of JIPL by speed post and courier on 20th August 2016, which as per the tracking report of the postal authorities, was served on the Ghaziabad address on 24th August 2016, albeit the notice issued at the Delhi address was returned by the postal authorities with the remark item delivery attempt/unclaimed dated 23rd August 2016.
Quite conspicuously, the Bench points out in para 6 that:
The facts stated noted above, though admitted, do not find any mention in the private complaint filed by respondent no. 2 - complainant on 23rd December 2017, which is the subject matter of the present appeal and in which the summoning order dated 19th July 2018 was passed by the Additional Chief Judicial Magistrate, Ghaziabad, which order, as noticed above, has been upheld by the High Court.
It is worth noting that the Bench enunciates succinctly in para 20 stating that, It is evident from the pre-summoning evidence led and the assertions made in the criminal complaint that the dispute raised by respondent no. 2 - complainant primarily pertains to settlement of accounts.
The allegations are:
- goods supplied by JIPL were not as per the requirements and demands of respondent no. 2 - complainant,
- goods supplied were different from the order placed, and
- goods lying with, and returned by respondent no. 2 - complainant have not been accounted for.
These assertions, even if assumed to be correct, would not fulfil the requirements of Section 405 of the IPC, or for that matter Sections 420 or 471. The material on record does not reflect and indicate that JIPL indeed had the dishonest/culpable intention for the commission of the alleged offences under the IPC. Unless the ingredients of aforesaid Sections of the IPC are fulfilled, the offence under Section 120-B of the IPC, for criminal conspiracy, would not be made.
In fact, a combined reading of the complaint and the pre-summoning evidence does not disclose any element of criminal conspiracy as per Section 120-A of the IPC. The complaint discloses a civil dispute and grievance relating to the claim made by JIPL. What is challenged by respondent no. 2 - complainant is the demand of Rs. 6,37,252.16p raised by JIPL as the amount payable till the year ending 2016. This assertion made by JIPL is questioned as incorrect.
The demand, even if assumed to be wrong, would not satisfy the ingredients of Section 405, or Sections 420 or 471 of the IPC, so as to justify the summoning order. As noted above, JIPL had filed a criminal case under Section 138 of the NI Act as two cheques for Rs. 1,93,776/- and Rs. 4,99,610/- issued by them, on presentation, were dishonoured on account of ‘insufficient funds’.
Most significantly, the Bench then minces just no words to state plainly in para 21 holding that:
We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by respondent no. 2 - complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420, and 471 of the IPC, as the allegations pertain to alleged breach of contractual obligations.
Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Limited and Others v. K.M. Johny (2011) 13 SCC 412., as it refers to earlier case laws in copious detail.
In Thermax Limited and Others (Supra), it was pointed that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing.
A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record.
He/she may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued (Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others, (2019) 16 SCC 610; Pepsi Foods Ltd. (Supra); and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420).
Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities.
Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.
Equally significant is what is then stated in para 22 that:
While summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act No. 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638; Abhijit Pawar v. Hemant Madhukar Nimalkar, (2017) 3 SCC 528; and Birla Corporation Limited (Supra)]. In the present case, the said exercise has not been undertaken.
Most forthrightly and most remarkably, the Bench then hastens to add in para 24 expounding that:
We must also observe that the High Court, while dismissing the petition filed under Section 482 of the Code, failed to take due notice that criminal proceedings should not be allowed to be initiated when it is manifest that these proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite the opposite side due to private or personal grudge. (Birla Corporation Limited (Supra); Mehmood ul Rehman (Supra); R.P. Kapur v. State of Punjab, AIR 1960 SC 866; and State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp (1) SCC 335.). Allegations in the complaint and the pre-summoning evidence on record, when taken on the face value and accepted in entirety, do not constitute the offence alleged. The inherent powers of the court can and should be exercised in such circumstances. When the allegations in the complaint are so absurd or inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the accused, summons should not be issued.
Finally, the Bench then concludes by holding in para 25 that:
For the aforesaid reasons, the appeal is allowed. The order of the High Court dated 30th March 2022 in the Application u/s 482 No. 31828 of 2019; the summoning order dated 19th July 2018 in the Complaint No. 3665 of 2017 and the order issuing non-bailable warrant dated 3rd June 2019 in the above complaint passed by the Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad, Uttar Pradesh are set aside and quashed.
In essence, we thus see that the sum and substance of this notable judgment is that the Apex Court has made it quite indubitably clear that the Magistrates must always remain ever vigilant against the needless summoning of the accused in civil disputes which are given the colour of criminal complaints. Of course, this is all the more imperative also because it is being seen as to how widely it is being rampantly misused for pure ulterior motives thus making a complete mockery of law. It thus merits no reiteration that if court does not ensures that this rampant misuse is never allowed and promptly checked then the very purpose of providing fair justice for which courts stands always would be entirely defeated also which cannot be allowed under any circumstances as people would then lose all their unflinching faith they pose in the judicial system which cannot ever be allowed to happen as it would have an irreversible effect on the law and order scenario also!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
