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

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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  

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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  

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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  

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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.  

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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  

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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.

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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  

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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  

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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:

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“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  

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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  

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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  

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(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  

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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

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