Summoning Order U/s 319 CrPC Should Not Be Passed Merely On Strength Of Guess Hazarded By Informant: Bombay HC

The Court also held that the power under Section 319(1) of the Cr.P.C. is an extraordinary power which has to be exercised with care and circumspection and not casually and mechanically.

While quashing the summoning order, the Bench comprising of Justice N.J. Jamadar observed, “The conspectus of aforesaid consideration is that the learned Magistrate did not keep in view the principles which govern the exercise of power under Section 319 of the Code. The order to summon the petitioner was passed on the strength of a guess hazarded by the first informant that the petitioner had also played a vital role in cheating the first informant. The learned Additional Sessions Judge also failed to correct the mistake committed by the learned Magistrate.”

Advocate Nesh Paul appeared for the Revision Petition whereas Public Prosecutor MP Prasanth appeared for the Respondent.

A petition was filed under Article 226/227 of the Constitution and Section 482 of the CrPC questioning the legality, propriety and correctness of an order passed by the Sessions Judge whereby a criminal revision application was dismissed affirming the order passed by the Magistrate summoning the Petitioner as an Accused invoking powers under Section 319 of the CrPC.

A case was filed under Section 420 read with Section 34 of the Indian Penal Code, 1860. On an application by the Public Prosecutor, the Magistrate issued process against the Petitioner herein for the alleged offence opining that a prima faciecase of cheating is made out against the Petitioner.

Other accused persons in the matter had entered into agreements of sale of the subject flats in the year 2001 in favour of Respondent-Informant and had allegedly accepted consideration of Rs. 62 Lacs for each flat. Subsequently, due to failure on the part of the other accused, the project was ensured to one M/s Mantri Realtry Ltd. and entered a Memorandum of Understanding with the Respondent-informant. Eventually, the transactions failed, and the Respondent-informant filed an FIR alleging Mantri Realtry did not comply with the terms.

The Court held that the Court must record the satisfaction that the person, who was not sent as an accused, appears to have committed the offence and such satisfaction must be recorded on the basis of evidence as it has to be exercised with care and circumspection and not casually and mechanically. “From the phraseography of Section 319(1) of the Code, the conditions for exercise of the powers by, and limits of jurisdiction of, the Court are also self evident. The power is, in a sense, of extra-ordinary in nature.”, the Court said.

The Court relied on the judgments passed by the Supreme Court in Lal Suraj Alias Suraj Singh and Anr. Vs. State of Jharkhand (2009 SC), Sarabjit Singh and Anr. Vs. State of Punjab and Anr.(2009 SC) and Hardeep Singh Vs. State of Punjab and Ors.(2014 SC).

The Court also noted, “Having chosen to forfeit part consideration and also repudiate the contract, it was not open for the first informant to allege that the petitioner had entered into the said transaction with intention to deceive the first informant…It is trite law that there is an essential distinction between failure to perform the promise and cheating. Mere failure to perform the promise would not constitute cheating unless the intention of the party in default was dishonest since the inception of the transaction.”

Accordingly, the Court allowed the petition and quashed the impugned order.

Cause Title: Sunil Pandurang Mantri v. State of Maharashtra and Anr. (Neutral Citation: 2024:BHC-AS:22789)

Appearances:

Petitioner: Advocates Prathamesh Samant and Siddhant Dalvi.

Respondents: APP S.R. Agarkar, Advocates Yashpal Thakur and Mukund Pandya

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