Summoning Of Accused A Serious Matter, Criminal Law Cannot Be Set Into Motion As A Matter Of Course: Delhi High Court

The Delhi High Court has observed that summoning of an accused in a criminal case is a serious matter and that the Criminal law cannot be set into motion as a matter of course.

Justice Chandra Dhari Singh further added that a Magistrate is the silent spectator at the time of recording of preliminary evidences before summoning of the accused and must carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

The Court was dealing with a plea filed by a practicing Advocate enrolled with Bar Council of Delhi since 1991 and the Respondent Complainant was a real estate development company.

It was the case of the complainant that the accused no. 1, the petitioner in the matter, in collusion with other accused persons made alterations in the space buyers agreement and that the petitioner committed breach of trust and made improvements to the determent of the complainant in the documents handed over.

The complainant had then filed police complaint against the petitioner on 5th January, 2011 alleging that despite of receiving entire agreed sale consideration Accused no. 2 and 3, being directors, failed to execute sale deed and the Petitioner in connivance released documents out of their escrow account, thereby committed criminal breach of trust under sec. 409 of the Indian Penal Code, 1860.

An Application under sec. 156(3) of the Cr.P.C. was also filed by the complainant, and vide order dated 30th June, 2011, the same was dismissed. However, cognizance was taken upon the complaint and complainant was asked to lead pre-summoning evidence.

The complainant thereafter, approached the Additional Sessions Judge against the order of dismissal of application under sec. 156(3) of the Cr.P.C. which was also dismissed vide order dated 12th December, 2011.

After examination of evidence, and consideration of other material on record, the petitioner was summoned by the Metropolitan Magistrate vide the impugned order dated 27th November, 2013, which was challenged by the petitioner in High Court.

The Court noted that as per the complaint filed by the complainant, there were no allegations that the documents deposited in escrow account had been utilized by the petitioner for his personal gain and advantage which is one of the essential ingredients of sec. 409 of the IPC which facts proved that no case was made out against the petitioner.

"The necessary elements constituted in the offence must be strictly proved by the prosecution. It is true that prosecution need to prove the actual mode of misappropriation and once entrustment of all dominion over the property is established, then it would be for the accused to explain as to how the property was dealt with. In the instant case, the Court below while issuing summons against the petitioner has overlooked the facts that no material on the record to establish any misappropriation of the money of the escrow account and therefore, the Court below has passed the impugned order without application of mind," the Court observed.

It added "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The complainant has to bring on record material to support his allegations in the complaint to have criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused."

The Court thus observed that the basic essential ingredients of criminal breach of trust were missing in the matter.

"Criminal proceedings are not shortcut for other remedies. The petitioner is a practicing advocate and he has given his professional services to the parties and there is no material on record to establish prima facie that he has committed any offence as alleged in the complaint," the Court added.

Observing further that the summoning order dated 27th November, 2013 had not considered the facts of the case in a proper manner and also did not assign any reason for summoning the petitioner, the Court quashed the summoning order and the complaint qua the petitioner is liable to be quashed.

The plea was accordingly allowed.

Case Title: YOGESH JAGIA v. JINDL BIOCHEM PVT LTD

Citation: 2022 LiveLaw (Del) 562

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