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PETITIONER: D. N. BHATTACHARJEE & ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ANR.

DATE OF JUDGMENT22/03/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH GROVER, A.N.

CITATION:  1972 AIR 1607            1972 SCR  (3) 973  1972 SCC  (3) 414

ACT: Code of Criminal Procedure (Act 5 of 1898), s.203--Power  of Magistrate  to dismiss complaint.

HEADNOTE: An  order of dismissal of complaint under s. 203 Cr.   P.C., has to be made on judicially sound grounds.  It can only  be made  where the reasons given disclose that the  proceedings cannot terminate successfully in a conviction.  A Magistrate is not debarred,. at this stage, from going into the  merits of the evidence produced by the complainant, but the, object of  such  consideration could only be to whether  There  are sufficient   grounds  for  proceeding  further.   The   mere existence  of  some  grounds  which  would  be  material  in deciding   whether  the  accused  should  be  convicted   or acquitted  does  not generally indicate that the  case  must necessary  fail.  On the other hand, such  grounds  indicate the  need  for proceeding further in order to  discover  the truth after a full and proper investigation.  If, however, a bare  perusal of a complaint or the evidence led in  support of  it show that the essential ingredients of  the  offences alleged  are absent or that the dispute is only of  a  civil nature  or  that there are such patent  absurdities  in  the evidence  produced  that  it would be a  waste  of  time  to proceed  further the complaint could be  properly  dismissed under the section. [9176 F-H] Where, therefore, the Magistrate dismisses a complaint on  a misreading  of the oral evidence and the evidence, in  fact, does  not reveal,any absurdity so as to merit  a  forthright dismissal of the complaint under the section, such an  order is. fit to be set aside by the High Court.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 156  of 1969. Appeal  by special leave from the judgment and  order  dated April  15,  1969  of the Calcutta  High  Court  in  Criminal Revision No. 1114 of 1963. C. K. Daphtary and D. N. Mukherjee, for the appellants. P.K. Chatterjee and G. S.  Chatterjee, for respondent No. 1.

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P. K. Mukherjee, for respondent No. 2. The Judgment of the Court was delivered by Beg, J. On 11-7-1963 Sunilakshva Choudhry a Director of  the Metropolitan  Industrial Corporation Ltd.,  Calcuta,  having been authorised by its Board of Directors, filed a complaint against  the  appellant  Debendra  Nath  Bhattacharjee   (or Bhattacharya),  a  former  Director,  and  Banamali  Pathak, Cashier of the Bengal 16-L1061SupCI/72 974 Luxmi Cotton Mills Ltd., and- Hiran Roy, Chief.   Accountant of  the  Bengal Luxmi Cotton Mills  Ltd.,  alleging  offence punishable  under Sections  408/409/467/471/477A/109  Indian Penal Code. The  complainant  alleged  that,  when  the  Life  Insurance business was nationalised in 1956 the Metroplitan  Insurance Co. Ltd. (hereinafter referred to as ’the Company’) received a  sum  of about Rs. 10,25,523/- as  compensation,  and  the Company   was  transformed  into   Metropolitan   Industrial Corporation (hereinafter referred to as ’the  Corporation’). The  business of the Corporation was said to be confined  to making  of  loans, and dealings in stocks and  shares.   The complainant  was  Director of the Company in  1957  and  the accused appellant D. N. Bhattacharjee was alleged to he  its Managing Diecor with absolute control over the funds of  the Company  and  the  only person  authorised  to  operate  the tanking  account of the Company with. the Metropolitan  Bank Ltd.   Roundabout  October, 1958, alth  ugh,  the  appellant Bhattacharjee  was  said to have ceased to be  the  Managing Director,  yet, he is alleged to have continued to  exercise the powers he had possessed as Managing Director, After  the Company  became  the Corporation Certain activities  of  the appellant  D N. Bbattacha-jee are alleged to-,have  come  to light and compelled his resignation on 28-2-1963 so that  he handed  over  some  of the Books and records  of  the  Court oration  to the complainant.  The complainant after  having, examined  the  records handed over by  D.  N.  Bhattacharjee claimed to have found monthly pay sheets containing names of certain employees who were not employees of the  Corporation at all and who were suspected to be fictitious as they could not  be  traced.  The complainant alleged that,  on  further enquiry,  he  round that the Corporation  had  not  employed anybody  at all but had taken occasional help  from  certain employees of sister concerns which had their offices in  the same  building.  In other words, the complainant claimed  to have discovered that the pay-sheets of the Corporation  were totally  false  and  fabricated.  He  also  complained  that fictitious  signatures of suport different persons  appeared to him to have been made by a single person so as to  appear as  signatures of different actually  existing  individuals. The  complainant alleged that his suspicions were  confirmed by sending these alleged signatures to a Handwriting  Expert for  opinion.   Accordinq to the complainant, all  this  was done  at  the instance of- or with the cornplicit of  D.  N. Bhattacharjee and with the aid of the two other  co-accused. It was asserted that D. N. Bhattacharjee bid full  knowledge of what was taking place and had dishonestly misappropriated and  converted to his own use large sums of money  belonging to the Corporation.  He and the two co-accused, who are said to have actually made the entries, were alleged to have been engaged  in  a conspiracy . The complainant gave a  list  of five witnesses, including that of  a Handwriting Expert, and he relied 975 upon  a number of account books, documents, and  records  of

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the Company and the Corporation. After  an  enquiry  in to the allegation  contained  in  the complaint a Presidency Magistrate found prima facie evidence of  a  conspiracy  ,to commit breach of  trust  by  forging, receipts  and us-- of forged receipts and  falsification  of accounts.   On 2-8-1963, the Presidency Magistrate,  ordered the case to be put up before the Chief Presidency Magistrate for further orders. On 10-8-1963, the Chief Presidency Magistrate, after  giving particulars  of  the  prosecution  case  and  the   evidence produced to support it, went on to observe "In assessing the evidence  adduced for the purpose of taking out  a  process, certain  broad  facts and  circumstances  and  probabilities cannot, in my opinion, be overlooked".  The Chief Presidency Magistrate then mentioned the reasons which, in his opinion, justified  a  dismissal of the complaint  without  issue  of process.  He pointed out : firstly, that the Company,  which was  admitted to be a going concern, must have had  some  of its  own  employees,who must have been taken  over,  by  the Corporation in 1960-, second, that D., N. Bhattacharjee,  at the time of his resignation on 28-2-1963 had handed over the records and account books of the Company to the  complainant which  fact indicated that be "probably." did not know  that any  of these were forged for fabricated; thirdly,  that  it was  "improbable"  that the Corporation could carry  on  its business without its own employees; fourthly, that  evidence had  not,  been  led to show :what enquiries  were  made  to indicate  that the, names oft the pay sheet were  fictitious fifthly, that the complainant had himself admitted that  one or  two  persons  shown in the pay  sheet  might  have  been employed  by the Corporation and that this "demolished"  the whole prosecution case of fictitious entries; and,  Sixthly, that the opinion of the Handwriting Expert "does not  appear to  be emphatic" and was also not supported  by  "sufficient reasons".    On   these  grounds,   the   Chief   Presidency Magistrate-,  after  holding  that there  were  "really,  no sufficient   grounds  to  proceed  further"  dismissed   the complaint under Sec. 203 Criminal Procedure Code. The complainant then invoked the Revisional jurisdiction  of the  Calcutta High Court.  That Court, after an  examination of  the complaint, the evidence produced for the purpose  of issuing process to the accused persons, and the order of the Chief Presidency Magistrate, came to the conclusion that the order of dismissal of the complaint under Sec. 203  Criminal Procedure  Code was improper.  The High Court held that  the order  contained  ape-mature verdict on the  merits  of  the case.   Furthermore,  the High Court pointed  out  that  the Chief Presidency Magistrate had misread the oral evidence in finding that the complainant said that one or two persons 976 mentioned in the pay sheets might have been employed by  the Company sometimes.  A correct reading of the evidence of the complainant,  which we have also examined, was that  one  or two persons may have been employed by the Company, from-time to time but none of the persons whose names appeared in  the pay  sheets  were  any  of  those  persons.   Even  if   the complainant had said that some of the entries in the account books.,appeared  to  be, deliberately false,  the  complaint would  not  have  merited  a  forthright  dismissal  without further  enquiry.  The High Court, in our  opinion,  rightly considered the order pronouncing a judgment on the merits of ’the,  case  on  bare  Probabilities  and  surmises  to   be Premature. .The High Court very rightly, did not express any opinion  on, merits of the prosecution case  ’beyond  saying that  the case called for further, enquiry.  it,  therefore,

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set  aside the order of dismissal under Section 203  of  the Criminal Procedure Code and, sent back the case for  further enquiry in accordance with law. The  accused  have come up to this Court  by  Special  leave against  the  above-mentioned Order of the  High  Court  for further  enquiry into the case.  It is urged that  the  High Court  should  not  have,  in  exercise  of  its  revisional jurisdiction,  set aside the Chief  Presidency  Magistrate’s order.   We are unable to accept this contention because  we think-that  the  Presidency  Magistrate  had  not  correctly understood  the scope and purpose of the power to dismiss  a complaint under Section 203 Criminal Procedure Code. It has to be remembered that an order of dismissal of a com- plaint under Section 203 Criminal Procedure Code has to  be, made on judicially sound grounds.  It can only be made where the  reasons  given  disclose that  the  proceedings  cannot terminate successfully in a conviction.  It is true that the Magistrate  is not debarred, at this stage, from going  into the  merits  of the evidence produced  by  the  complainant. But,  the object of such consideration of the merits of  the case,  at  this stage, could only be  to  determine  whether there are sufficient grounds for proceeding further or  not. Ile mere existence of some grounds which would ’be  material in  deciding  whether  the accused should  be  convicted  or acquitted  does  not generally indicate that the  case  must necessarily  fail.   On the other hand,  such  grounds.  may indicate  the  need  for  proceeding  further  in  order  to discover  the truth after a full and  proper  investigation. If,  however, a bare perusal of a complaint or the  evidence led in support of it show that essential ingredients of  the offences alleged are absent or that the dispute is only of a civil  nature or that there are such patent  absurdities  in evidence  produced  that  it would be a  waste  of  time  to proceed  further, the complaint could be properly  dismissed under Section 203 Criminal Procedure Code. 977 In  the case before us, the learned Magistrate was in  error in  assuming  that merely because the. names of one  or  two former employees of the Company may be mentioned in the pay- sheets  the whole prosecution case was actually  demolished. Moreover,  as  the High Court had rightly pointed  out,  the complainant’s  actual evidence had fully supported  and  not contradicted  any part of the complaint.  No such  absurdity was  revealed  by he complainant’s evidence as  to  merit  a forthright  dismissal  of the complaint  under  Section  203 Criminal  Procedure  Code.   What  the  Magistrate  had   to determine  at  the stage of issue of process  was  not  the, correctnes or the probability or improbability of individual items  of evidence on disputable grounds, but the  existence or otherwise of a prima  facie, case on the assumption  that what  was  stated  could be%  true  unless  the  prosecution allegations were so fantastic that they could not reasonably be held to be true. As  we,  in agreement with the High Court,  think  that  the order  of the Chief Presidency Magistrate in dismissing  the complaint  was  premature  and was  also  based  on  obvious ’misconceptions, we dismiss this appeal. V.P.S.                    Appeal dissmissed. 978