REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO.4606 of 2011
Helios & Matheson Information
Technology Ltd. & Ors. ...
Petitioners
Versus
Rajeev Sawhney & Anr. ...Respondents
With
SPECIAL LEAVE PETITION (CRL.) No.4672 of 2011
Pawan Kumar ...Petitioner
Versus
Rajeev Sawhney & Anr. ...Respondents
1
J U D G M E N T
T.S. THAKUR, J.
1. These Special Leave Petitions arise out of an order
dated 6th May, 2011, passed by the High Court of Judicature
at Bombay in Criminal Revision Application No.441 of 2008
whereby the High Court has set aside order dated 13th
August, 2008 passed by the Additional Sessions Judge,
Greater Bombay in Revision Applications No.449, 460 and
853 of 2007 and restored that made by the Additional Chief
Metropolitan Magistrate, 47th Court, Esplanade, Mumbai
taking cognizance of offences allegedly committed by the
petitioners.
2. Respondent No.1, Rajeev Sawhney filed Criminal
Complaint No.20/SW/2007 before Additional Chief
Metropolitan Magistrate, 47th Court, Esplanade, Mumbai,
alleging commission of offences punishable under Sections
417, 420, 465, 467, 468, 471 read with Section 120B of
2
IPC by the petitioners. The complaint set out the relevant
facts in great detail and made specific allegations to the
effect that petitioners had entered into a conspiracy to
defraud him and for that purpose Shri Pawan Kumar,
arrayed as accused No.4 in the complaint, had played an
active role apart from fabricating a Board resolution when
no such resolution had, in fact, been passed. On receipt of
the complaint the Additional Chief Metropolitan Magistrate
recorded prima facie satisfaction about the commission of
offences punishable under Sections 417, 420, 465, 467,
468, 471, read with Section 120B of IPC, took cognizance
and directed issuance of process against the accused
persons. Aggrieved by the said order, Revision Petitions
No.449, 460, 853 of 2007 were filed by the accused
persons before the Additional Sessions Judge, Greater
Bombay, challenging the order taking cognizance and the
maintainability of the complaint on several grounds. The
revision petitions were eventually allowed by the Additional
Sessions Judge, Greater Bombay by his order dated 13th
August, 2008 and the summoning order set aside. The
Additional Sessions Judge came to the conclusion that
3
although the allegations regarding fabrication of a
resolution, taken at their face value, made out a prima
facie case of fraud against the accused persons yet the
minutes of a subsequent meeting allegedly held on 19th
July, 2005, a photocopy of which was filed along with
Criminal Revision No.460/2007 ratified the resolution
allegedly passed on 28th June, 2005. The Court on that
premise concluded that no fraud or cheating was made out
against the accused persons. The Court observed:
"The question is only in respect of the incident
28/06/2005 if this incident averred in the complaint is
taken as it is without any more facts then certainly
leads a prima facie case of playing fraud. However, in
this case, it is seen from the record that the
complainant had meeting on 19/07/2005, the minutes
of the meeting are produced at page No.293 in Criminal
Revision No.460/2007. This meeting and its minutes
are not disputed. The relevant portion of the minutes
on 19/07/2005 relevant for our purposes are as under:
"Mr. Rajeev Sawhney has agreed to approve and
sign the circular resolution for opening the Bank
Account of VMoksha Mauritius with State Bank of
Mauritius and obtaining the loan facility for the
purposes of receiving the purchase consideration
and remittance of the subscription money for the
issue of preference shares in favour of VMoksha
Mauritius with effect from the time of execution
and exchange of the above Undertaking and the
modification letter for the Escrow Arrangement."
This ratifies the act of 28/06/2005, therefore the
minutes of the meeting which is signed by the
4
complainant himself and accused No.4. Mr. Pawan
Kumar and other directors etc. if perused the act of
28/06/2005 is ratified and the complainant thus
consented to that act. Therefore, there remained
nothing of the cheating to the complainant by the
accused."
(emphasis is
supplied)
3. The Court also found fault with the complainant
suppressing the fact of a complaint having been filed before
the Additional Chief Metropolitan Magistrate at Bangalore
and the alleged non-observance of the provisions of Section
202 of the Cr.P.C.
4. The above order was then challenged by the
complainant, Shri Rajeev Sawhney before the High Court of
Bombay in Criminal Revision Application No.441 of 2008.
The High Court came to the conclusion that the Additional
Sessions Judge had fallen in error on all three counts. The
High Court noticed that the complaint filed before the IV
Additional Chief Metropolitan Magistrate at Bangalore had
been quashed by the Karnataka High Court on account of a
more comprehensive complaint having been filed before the
Additional Chief Metropolitan Magistrate at Mumbai.
5
Consequently, on the date the Additional Chief Metropolitan
Magistrate took cognizance of the offence alleged against
the accused persons there was no complaint other than the
one pending before the said Court. The complainant could
not, therefore, be accused of having suppressed any
material information from the trial Court to call for any
interference by the Sessions Court on that count.
5. As regards the alleged non-observance of the
provisions of Section 202 Cr.P.C. the High Court came to
the conclusion that the provision of Section 202 Cr.P.C. had
been complied with by the Magistrate while taking
cognizance and issuing process.
6. On the question of ratification of the resolution
allegedly passed on 28th June, 2005, the High Court held
that the Sessions Judge was not justified in entertaining a
photocopy of the document relied upon by the accused at
the revisional stage, placing implicit reliance upon the same
6
and interfering with the on-going proceedings before the
Magistrate. The High Court observed:
"The third ground on which the learned Addl. Sessions
Judge had allowed the revision of the accused persons
and quashed the process was that the acts in dispute
were ratified in the meeting dated 19.7.2001. It
appears that during the arguments before the Addl.
Sessions Judge, a photocopy of a document purporting
to be minutes of the meeting of the advisers of the
complainant and accused No.4 Pawan Kumar held on
19.7.2005 was produced to show that the parties had
approved the act of opening the account in the name of
the Company and securing the loan on 28.6.2005.
Firstly, this document was produced for the first time
before the Addl. Sessions Judge in the revision
application. This document could be treated as a
defence of the accused persons. That document was
not available before the Addl. C.M.M. when he passed
the order. Secondly, this document being the defence
could not be taken into consideration for the purpose of
deciding whether prima facie case is made out for
issuing process. The learned Addl. Sessions Judge
observed that signature on the document was not
disputed. In fact, the stage of proving that document or
admitting signature on that document had never
arisen. The original document was not before the Court
and only a photocopy of the document purporting to be
minutes of the meeting was filed and on the basis of
such photocopy produced during the revision
application by the accused persons, the learned Addl.
Sessions Judge jumped to the conclusion that such a
resolution was passed and the acts of 28.6.2005 were
ratified. In my opinion, it will not be appropriate for
the Addl. Sessions Judge."
7. The present Special Leave Petitions assail the
correctness of the view taken by the High Court.
7
8. Appearing for the petitioners M/s. K.K. Venugopal and
Altaf Ahmed, learned senior counsels strenuously argued
that the High Court was not justified in reversing the view
taken by the Sessions Judge and in remitting the matter
back to the trial Court. We do not think so. The reasons are
not far to seek. We say so because the averments made in
the complaint when taken at their face value, make out a
case against the accused. We have gone through the
averments made in the complaint and are of the view that
the complaint does contain assertions with sufficient
amount of clarity on facts and events which if taken as
proved can culminate in an order of conviction against the
accused persons. That is, precisely the test to be applied
while determining whether the Court taking cognizance and
issuing process was justified in doing so. The legal position
in this regard is much too well-settled to require any
reiteration.
9. Learned counsel for the petitioners made a valiant
attempt to argue that the Revisional Court was justified in
8
receiving documents from the accused persons at the
hearing of the revision and decide the legality of the order
taking cognizance on that basis. Before the High Court a
similar contention was raised but has been turned down for
reasons that are evident from a reading of the passage
extracted by us above. We see no error or perversity in the
view taken by the High Court that in a revision petition
photocopies of documents produced by the accused for the
first time, could not be entertained and made a basis for
setting aside an order passed by the trial Court and
dismissing a complaint which otherwise made out the
commission of an offence. The accused is doubtless entitled
to set up his defence before the trial Court at the proper
stage, confront the witnesses appearing before the Court
with any document relevant to the controversy and have
the documents brought on record as evidence to enable the
trial Court to take a proper view regarding the effect
thereof. But no such document, the genuineness whereof
was not admitted by the parties to the proceedings, could
be introduced by the accused in the manner it was sought
to be done. We may in this regard gainfully refer to the
9
decision of this Court in Minakshi Bala v. Sudhir Kumar
and Ors. (1994) 4 SCC 142 where one of the questions
that fell for consideration was whether in a revision petition
challenging an order framing charges against the accused,
the latter could rely upon documents other than those
referred to in Sections 239 and 240 of the Cr.P.C. and
whether the High Court would be justified in quashing the
charges under Section 482 of the Cr.P.C. on the basis of
such documents. Answering the question in the negative
this Court held that while an order framing charges could
be challenged in revision by the accused persons before the
High Court or the Sessions Judge, the revisional Court could
in any such case only examine the correctness of the order
framing charges by reference to the documents referred to
in Sections 239 and 240 of the Cr.P.C and that the Court
could not quash the charges on the basis of documents
which the accused may produce except in exceptional cases
where the documents are of unimpeachable character and
can be legally translated into evidence. The following
passage is, in this regard, apposite:
10
"7. If charges are framed in accordance with Section
240 CrPC on a finding that a prima facie case has been
made out -- as has been done in the instant case --
the person arraigned may, if he feels aggrieved, invoke
the revisional jurisdiction of the High Court or the
Sessions Judge to contend that the charge-sheet
submitted under Section 173 CrPC and documents sent
with it did not disclose any ground to presume that he
had committed any offence for which he is charged and
the revisional court if so satisfied can quash the
charges framed against him. To put it differently, once
charges are framed under Section 240 CrPC the High
Court in its revisional jurisdiction would not be justified
in relying upon documents other than those referred to
in Sections 239 and 240 CrPC; nor would it be justified
in invoking its inherent jurisdiction under Section 482
CrPC to quash the same except in those rare cases
where forensic exigencies and formidable compulsions
justify such a course. We hasten to add even in such
exceptional cases the High Court can look into only
those documents which are unimpeachable and can be
legally translated into relevant evidence."
10. It is interesting to note that even in the present SLPs
the petitioner has filed an unsigned copy of the alleged
minutes of the meeting dated 19th July, 2005. We do not
think that we can possibly look into that document without
proper proof and without verification of its genuineness.
There was and is no clear and unequivocal admission on the
record, at least none was brought to our notice, regarding
the genuineness of the document or its probative value.
The complainant-respondent in this petition was also not
willing to concede that the document relied upon could
11
possibly result in the ratification of an act which was non
est being a mere forgery. At any rate the document could
not be said to be of unimpeachable character nor was there
any judicial compulsion much less an exceptional or
formidable one to allow its production in revisional
proceedings or to accept it as legally admissible evidence
for determining the correctness of the order passed by the
trial Court. That apart whether or not document dated 19th
July, 2005, could possibly have the effect of ratifying the
resolution allegedly passed on 28th June, 2005 was also a
matter that could not be dealt with summarily, especially
when the former did not even make a reference to the
latter.
11. The alternative contention urged by learned counsel
for the petitioners that there was suppression of
information by the complainant as regards filing of a
previous complaint before the Magistrate at Bangalore is
also without any substance. The fact that the complaint
previously filed had been quashed by the High Court on
12
account of filing of a comprehensive complaint out of which
these proceedings arise is, in our opinion, a complete
answer to the charge of suppression. As on the date the
Additional Chief Metropolitan Magistrate, Mumbai, took
cognizance of the offences in the complaint filed before him
no other complaint was pending in any other Court, the
complaint before the Magistrate at Bangalore having had
been quashed without a trial on merits. Mere filing of a
previous complaint could not in the above circumstances be
a bar to the filing of another complaint or for proceedings
based on such complaint being taken to their logical
conclusion. So also the High Court was, in our opinion,
correct in holding that there was no violation of the
provision of Section 202 Cr.P.C. to warrant interference in
exercise of revisional powers by the Sessions Judge.
12. Reliance placed by learned counsel for the petitioners
upon the decisions of this Court in Pepsi Foods Ltd. and
Anr. v. Special Judicial Magistrate and Ors. (1998) 5
SCC 749 and State of Orissa v. Debendra Nath Padhi
13
(2005) 1 SCC 568 is of no avail. In the former case this
Court simply recognized that taking of cognizance is a
serious matter and that the magistrate must apply his mind
to the nature of the allegations in the complaint, and the
material placed before him while issuing process. The
complaint in the present case, as noticed earlier, does
make specific allegations which would call for a proper
inquiry and trial and the magistrate had indeed recorded a
prima facie conclusion to that effect. So also the decision in
Debendra Nath Padhi (supra) does not help the
petitioner. That was a case where the question was
whether at the stage of framing of charge, the accused
could seek production of documents to prove his innocence.
Answering the question in the negative this Court held:
"The law is that at the time of framing charge or taking
cognizance the accused has no right to produce any
material. No provision in the Code of Criminal
Procedure, 1973 (for short the "Code") grants to the
accused any right to file any material or document at
the stage of framing of charge. That right is granted
only at the stage of the trial. Satish Mehra case, (1996)
9 SCC 766 holding that the trial court has powers to
consider even materials which the accused may
produce at the stage of Section 227 of the Code has
not been correctly decided. It is well settled that at the
stage of framing of charge the defence of the accused
cannot be put forth. The acceptance of the contention
of the accused would mean permitting the accused to
14
adduce his defence at the stage of framing of charge
and for examination thereof at that stage which is
against the criminal jurisprudence."
13. In the result, we see no reason to interfere with the
order passed by the High Court in exercise of our
jurisdiction under Article 136 of the Constitution of India.
The Special Leave Petitions are accordingly dismissed.
.....................................J.
(Dr. B.S. CHAUHAN)
.....................................J.
(T.S. THAKUR)
New Delhi
December 16, 2011
15
