Basab Ghosh v. Outlook Publishing (India) Pvt Ltd

judgment though upholding the mandatory requirement of Section 200 of the Code to examine the complainant on oath and to reduce the substance into writing does not deal with the issue before this Court and nowhere has the Hon"ble Supreme Court said that if the Magistrate acts upon the affidavit instead of personally examining the complainant that by itself would vitiate the order of summoning passed by him.

¶24In the case of S.W.Palanitka (supra), the Hon"ble Supreme Court, inter alia, observed as under: "In case of a complaint under Section 200 Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding."

The above referred observation only indicates what has been prescribed in Section 200 of the Code of Criminal Procedure and does not anywhere say that failure to examine the complainant in Court, while acting upon the affidavit

tendered by him in evidence would be an irregularity vitiating the cognizance taken by him.

¶25In the case of Pepsi Foods (supra), the Hon"ble Supreme Court, inter alia, observed as under: "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the 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. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise 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."

¶26This judgment only emphasizes the need for the Magistrate to be an active participant and not merely a silent

spectator at the time of examination of the complainant and his witnesses and to apply his mind to the facts of the case instead of passing mechanical orders. It does not deal with the issues before this Court.

¶27In M/s. Morgan Tectronics (supra), this Court held that since NSIC is a company, and therefore, not a public servant, the mandate of Section 200 of the Code of Criminal Procedure requiring compulsory examination of the complainant and witnesses was required to be followed by the learned Metropolitan Magistrate. The issue before this Court being altogether different, this judgment is of no help to the petitioner.

¶28In the case of Dr.Ritu Rawat (supra), this Court, inter alia, observed as under: "A Magistrate taking cognizance of an offense on a complaint filed before him Under Section 200 of the Cr.P.C. is obliged to examine the complainant on oath and the witnesses present at the time of filing the complaint. In the present case the Magistrate has not examined the complainant on oath and therefore it cannot be said that the Magistrate has taken cognizance under Section 200 of Cr.P.C."

In the present case the issue before the Court is not as

to whether cognizance has been taken on a complaint or on a police report and, therefore, this judgment is of no help to the petitioner.

¶29In the case of A.R.Antulay (supra), the Hon"ble Supreme Court, inter alia, observed: "When a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Cr.P.C."

There is no quarrel with the aforesaid proposition based upon the provisions contained in Section 200 of the Code of Criminal Procedure. But, nowhere has the Hon"ble Supreme Court said in this case that for the purpose of proceeding on the basis of a private complaint, the Magistrate cannot act upon the affidavit of the complainant and/or witnesses.

¶30For the reasons given in the preceding paragraphs, I am of the considered view that the order summoning the petitioner need not be quashed merely because the Metropolitan Magistrate instead of personally examining the concerned officer of the complainant and reducing the substance of his examination into writing chose to act upon the affidavit tendered by him in evidence.

¶31The petitioner has been summoned under various provisions of IPC, including Sections 408 & 409 thereof. Admittedly, the petitioner was employed with the complainant at the relevant time. The case of the complainant, as disclosed in the complaint and affidavit filed in its support, is that the Mast-Heads of unsold magazines used to be returned to the petitioner who was in charge of its Calcutta Office, by the vendors to whom the magazines used to be supplied by the complainant Company. This is also the case of the complainant/respondent that the petitioner who was entrusted with this property of the Company or who being in charge of its Calcutta Office had domain over it, did not return these Mast-Heads to the complainant Company and thereby committed criminal breach of trust punishable under Section 408 of IPC. The Mast Heads of unsold magazines were definitely property of the complainant Company and were in fact very important for it since it was only on the basis of mast head of the unsold magazines that the complainant Company could have given adjustment to the vendors for the magazines which remained unsold with them. Therefore, offence under Section 408 of IPC is prima facie

made out against the petitioner from the averments made in the complaint and the primary evidence produced by the complainant. Hence, it cannot be said that the allegations made in the complaint, even if taken as true and on their face value, do not disclose commission of an offence by the petitioner. However, I am not going into the question as to whether other offences for which the petitioner has been summoned to face trial are made out against him or not. It will be open to the petitioner to contend either before the trial court at an appropriate stage or before a superior court, in appropriate proceedings that the other offences attributed to him are not made out from the allegations made against him in the complaint.

¶32The petition is, hereby, dismissed. The observations made in this order will, however, not affect the decision of the case on merit, at any stage of the proceedings. The record of the trial court be sent back within seven days along with a copy of the judgment.

(V.K.JAIN) JUDGE FEBRFUARY 25, 2010 RS/

* IN THE HIGH COURT OF DELHI AT NEW DELHI + % Reserved on: 22nd February, 2010 Date of Decision: 25th February, 2010 # BASAB GHOSH ..... Petitioner ! Through: Mr.D.P.Mukherjee & Mr.Nandin Sen, Advs. versus $ M/s.OUTLOOK PUBLISHING (INDIA) PVT. LTD. ..... Respondent ^ Through: Mr.A.J.Bhambhani, Ms.Nisha Bhambhani, Ms.Lakshita & Ms.Ranjita, Advocates. * CORAM: HON'BLE MR. JUSTICE V.K. JAIN 1. Whether the Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? : V.K. JAIN, J. 1. This is a petition under Section 482 of the Code of Criminal Procedure challenging the order dated 24.3.2009, whereby the petitioner was summoned for having committed offences punishable under Sections 408, 409, 418 & 422 of IPC. 2. The petitioner was appointed as an Executive with the complainant/respondent, which is a Company engaged in the business of publication of various magazines such as Outlook, Outlook (Hindi), Outlook Traveler, Outlook Money, Outlook Business. The duties of the petitioner included distribution and sale of magazines published and/or distributed by the complainant to various distributors, retail venders, hawkers, small book shops, etc., and to collect money from them, principally in the States of West Bengal, Orissa, Bihar, Jharkhand and Assam. The petitioner was also responsible to maintain a true, correct and accurate account and record of the magazines returned unsold so that adjustment in respect of returned magazines could be made which calculating the money owed by the parties to whom the magazines were supplied to the complainant Company. The number of parties within the areas in which the petitioner used to operate is believed to be around 5,000, most of them being small operators, operating from kiosks, small shops, street corners, pavements, etc. It has been alleged in the complaint that on scrutiny of the amount owed to the complainant Company, by the parties to whom magazines used to be supplied, it transpired that the petitioner had failed to collect a sum which he himself represented to be about Rs.41,62,492/-. He was asked by the complainant Company to collect outstanding amounting to Rs.30,71,475/- from 16 major distributors but out of that he collected a sum of Rs.2,34,382/- and, eventually, he submitted his resignation letter dated 6.8.2008. He was thereupon asked to render true, correct and complete account of the money owed to the complainant Company for the magazines. The petitioner was also asked to render a full account of the magazines returned unsold, in stipulated manner which involved cutting-out the mast-heads of the unsold magazines and returned them to the Head Office of the complainant Company in New Delhi. 3. It was informed that two of its relatively bigger distributors M/s.Vishal Book Centre and M/s.Prasad News Agency informed the complainant Company that unsold portion of the magazines was controlled by the petitioner and as per system, every month they used to prepare actual Must-Head Cuttings and hand over the same to the peon of Calcutta Office along with a Must-Heads letter and the office copy of the letter was used to be acknowledged by the peon. It was further informed that thereafter the petitioner used to come to their office to finalise the claim and instruct them as regards the figures of returned magazines. If in a month, the actual Must-Head was 5,000 copies per month, he would instruct them to make claim of 3,000 copies. It was further informed to the complainant Company that the petitioner took undue advantage of the faith which the distributors had in him and the ignorance and callousness of his staff, and had shown sale graph of his territory higher than what it actually was. M/s.Prasad News Agency informed the complainant Company that a sum of Rs.4,18,352/- had been worked out for the returned magazines and the petitioner had been promising that the same would be