Prabha Mathur & Anr vs Pramod Aggarwal & Ors

and confirmed by the Additional Sessions Judge, 2

Agra on July 29, 2006 dismissing the complaint

filed by the complainants against the accused

for offences punishable under Sections 420,

467, 468, 471 read with Sections 34 and 120B,

Indian Penal Code, 1860. The High Court

remanded the matter to the trial Court with a

direction to make further inquiry in the matter

and to pass an appropriate order in accordance

with law.

3. Brief facts giving rise to the present

appeal are that Pramod Kumar Aggarwal and Smt.

Taruna Aggarwal, wife of Pramod Kumar Aggarwal

(hereinafter referred to as `the complainants')

are in the business of sale and purchase of

property. It was the case of the complainants

that they contacted the appellants herein for

purchase of the property from the appellants

since appellants were having share in the

property situated at village Nagla Padi Muhai

Beni Prasad Tehsil, District Agra in front of

Civil Court, Agra which was a joint family

property. The complainants apprised the 3

appellants-herein that they were interested in

purchasing share of the property owned by the

appellants. They were also to purchase the

remaining property from other co-owners.

According to the complainants, the appellants

sold their shares in the property to the

complainants. Payment was made by the

complainants to the appellants. It was the

allegation of the complainants that it was

agreed between the parties that sale-deeds

would be executed by the appellants in favour

of purchasers. Sale-deeds were also drafted.

The appellants, however, did not come to the

office of Sub-Registrar, Agra for registration

of sale-deeds. The appellants induced the

complainants, gave false assurances and cheated

them. Thereby the appellants committed offences

punishable under Sections 420, 467, 468 and 471

read with Sections 34 and 120B of the Indian

Penal Code (IPC). A complaint was, therefore,

filed by the complainants in the Court of

Special Chief Judicial Magistrate, Agra, being 4

Complaint Case No. 1962 of 2003. The learned

Magistrate after recording statements of

witnesses, examining documents produced by the

complainants and perusing inquiry report

submitted by the Police held that the entire

case was of a civil nature. There was,

therefore, no justification for initiating

criminal proceedings. He, accordingly,

dismissed the complaint.

4. Being aggrieved by the above order,

the complainants approached the revisional

Court by filing revisions being Criminal

Revision Nos. 235-36 of 2005. The Additional

Sessions Judge again considered the relevant

record, heard the arguments of both the parties

and held that no error was committed by the

trial Court in dismissing the complaint and the

revision petitions were liable to be dismissed.

Accordingly, both the revisions were dismissed

by the Additional Sessions Judge, Agra.

5. The complainants in view of dismissal

of complaints and revisions challenged those 5

orders by instituting Criminal Writ Petition

Nos. 9952-53 of 2006 in the High Court of

Judicature at Allahabad.

6. The High Court without issuing notice

to the appellants herein and without affording

opportunity of being heard, allowed both the

writ petitions, set aside the order passed by

the trial court and confirmed by the revisional

court and remanded the matter to the learned

Magistrate with a direction to make further

inquiry in the matter and to pass an

appropriate order in accordance with law. The

said order is challenged by the appellants

herein.

7. On March 08, 2007, notice was issued

and further proceedings were stayed. In the

said order, it was indicated that the notice

will state as to why the petition should not be

disposed of at the SLP stage by setting aside

the order of the High Court and by remitting it

for fresh disposal in accordance with law. 6

8. Affidavits and further affidavits were

thereafter filed. The Registry was directed to

place the matter for final disposal on a non-

miscellaneous day and that is how the matter

has been placed before us.

9. We have heard the learned counsel for

the parties.

10. The learned counsel for the appellants

contended that the order passed by the High

Court deserves to be quashed and set aside on

the ground that the order was not in consonance

with principles of natural justice and fair

play. It was submitted that complaints were

filed against the appellants. Serious

allegations were leveled against them that they

had committed certain offences punishable under

the Indian Penal Code (IPC). The appellants

convinced the Court that the entire transaction

was in the nature of civil dispute between the

parties and criminal proceedings could not have

been initiated. After applying mind and

considering the relevant material on record, 7

the trial Court was satisfied that no complaint

could have been filed against the appellants.

Accordingly, the complaint was dismissed. The

said order was confirmed in revision by the

Additional Sessions Judge. The High Court could

not have set aside the order passed by the

Courts below without issuing notice and

affording opportunity of hearing to the

appellants. The order passed in the writ

petitions in violation of principles of natural

justice deserves to be set aside.

11. It was also submitted that under the

Allahabad High Court Rules, 1952, (`Rules' for

short), when any person is joined as respondent

in a writ petition, notice must be issued to

such person if the Court does not reject the

petition. In the instant case, both the Courts

decided in favour of the appellants and the

complaint filed by the complainants was

dismissed. Even if the High Court felt that the

orders passed by the Courts below were not in

consonance with law, it was incumbent on the 8

High Court to issue notice to the appellants

and only thereafter an appropriate order could

have been passed. Only on that ground, the

impugned order deserves to be set aside.

12. It was also submitted that even on

merits, the order passed by the High Court is

not sustainable.

13. The learned counsel for the

complainants supported the order passed by the

High Court and the directions issued therein.

It was submitted that whatever might have been

stated by the High Court in the course of

deciding writ petitions, the final direction to

the trial Court is to make further inquiry and

to pass an appropriate order. Such direction

could not be said to be contrary to law.

14. Regarding notice and hearing, the

counsel submitted that under the Code of

Criminal Procedure, 1973 (hereinafter referred

to as `the Code'), an accused has no locus

standi till summons or process is issued to 9

him. It is not in dispute that no summons has

been issued to the appellants so far. Even the

High Court has also not directed the trial

Court to issue summons to the appellants and

hence, there is no question of giving notice or

affording hearing to the appellants. It is

only after the trial Court issues summons or

process that the appellants may challenge the

said action by taking appropriate proceedings

known to law. At this stage, however,

appellants cannot be heard to make grievance of

absence of hearing. Upholding of such

contention would indirectly give the appellants

locus standi unknown to the Code. It was,

therefore, submitted that the appeal deserve to

be dismissed.

15. The learned counsel for the State

supported the arguments advanced by the learned

counsel for the complainants.

16. Having heard the learned counsel for

the parties, in our opinion, the appeal

deserves to be allowed. It is no doubt true, 10

as held by this Court in Smt. Nagawwa v.

Veeranna Shivalingappa Konjalgi & Ors., (1976)

3 SCC 736 and reiterated in several other cases

that the accused has no locus standi at the

stage of investigation and he cannot insist for

hearing before process is issued against him. It was also held in Chandru Deo Singh v.

Prokash Chandra Bose & Anr., (1964) 1 SCR 639

and in Shashi Jena & Ors. v. Khadal Swain &

Anr., AIR (2004) 4 SCC 236 that at the most, an

accused may remain present with a view to be

informed as to what is going on and nothing

more. It is equally correct that if a person

has no locus standi or right of hearing, such

right does not accrue in his favour by an

indirect process.

17. On the facts and in the circumstances

of the case, however, in our opinion,

submission of the learned counsel for the

appellants is well-founded that the High Court

ought to have issued notice and afforded 11

hearing before passing the impugned order in

writ-petitions.

18. We have already noted that both the

Courts decided the case in favour of the

appellants and the complaint was dismissed. The

complaints approached the High Court by joining

appellants as respondents. The writ petitions

were not dismissed in limine. In accordance

with Rule 2 of Chapter XXII of the Rules,

notices ought to have been issued to the

appellants before the writ petitions were heard

and finally decided.

19. But even otherwise, issuance of such

notice to the appellants was necessary and was

in consonance with the principles of natural

justice and fair play.

20. Even on merits, the impugned order of

the High Court is not sustainable. The High

Court made certain observations against the

appellants which have prejudicially and

adversely affected them.

12

21. In this connection, learned counsel

for the appellants invited our attention to the

following portion of the judgment of the High

Court;

"The Court of Special Chief Judicial Magistrate, Agra dismissed the said complaint holding that simply because the deed was not executed according to the scheduled conditions no penal offence is made out. The Revisional Court also cited certain authorities and ultimately dismissed the Revision. I have given my anxious consideration to the matter and I find that this is not a question of not executing the sale deed according to the schedule or prescribed conditions, but it shows the criminal intention of the opposite parties who obtained the money by way of case and Bank draft an did not execute the sale deed. Had the opposite parties not induced the complainant to purchase the property, the complainant would not have parted with this huge amount which is a clear case of cheating. Thus, the order of the Special Chief Judicial Magistrate, Agra and that of Revisional Court are devoid of any force. The order dated 16.7.2005 passed by Special Chief Judicial Magistrate, Agra and the order dated 29.7.2006 passed by Revisional Court in Criminal Revision No. 235/05 and in Criminal Revision No. 236/05 are liable to be set aside". (emphasis supplied) 13

22. Bare reading of the above paragraph

shows that the High Court had given "anxious

consideration" to the matter and it found that

there was no question of not executing the sale

deed according to the schedule or prescribed

conditions by the appellants herein, but it

reflected "criminal intention". It was further

observed that had the accused not induced the

complainants to purchase the property, the

latter would not have parted with huge amount.

It was thus a "clear case of cheating". In

view of above findings, the High Court observed

that the Special Chief Judicial Magistrate and

Additional Sessions Judge were not right in

dismissing the complaints and the orders passed

by them were liable to be set aside.

Accordingly, both the orders were set aside by

the High Court and direction was issued to the

trial court to make further inquiry and pass

appropriate order.

14

23. We see considerable force in the

argument of the learned counsel for the

appellants that the above finding as to mens

rea on the part of the appellants and that

`clear case of cheating' being made out, could

not have been arrived at without issuing notice

to the appellants and without affording

opportunity of being heard. The counsel is also

right in submitting that though final direction

to the trial Court is to hold further inquiry

and to make an appropriate order, in view of

earlier portion in the judgment probably, no

option has been left with the trial Court, but

to issue process. It is thus a case of fait

accompli.

24. From the record it is clear that the

present appellants were arrayed as respondents

in the writ petitions and yet the High Court

did not think it appropriate to observe natural

justice. In our opinion, the High Court could

not have set aside the judgments of Courts 15

below and could not have made the aforesaid

observations.

25. Hence, without entering into larger

question and expressing any opinion one way or

the other as to the right of the accused of

claiming hearing before issuance of

process/summons, on the facts and in the

circumstances of the case, the impugned order

passed by the High Court deserves to be set

aside and is, accordingly, set aside.

26. For the foregoing reasons, the

impugned order passed by the High Court is set

aside and the matter is remitted to the High

Court. The High Court will issue notice to the

appellants herein, afford them opportunity of

hearing and pass an appropriate order in

accordance with law.

27. Before parting with the matter, we may

state that we may not be understood to have

expressed any opinion one way or the other so

far as merits are concerned. As and when the 16

High Court will hear the matter, it will decide

the writ petitions without being influenced by

any observations made by it in the impugned

order or by us in this judgment.

28. Ordered accordingly.

.........................................................J. (C.K. THAKKER)

.........................................................J. (D. K. JAIN) New Delhi.

September 26, 2008.