2023 LiveLaw (SC) 3

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
SANJIV KHANNA; J., J.K. MAHESHWARI; J.
CRIMINAL APPEAL NO. 2328 OF 2022; January 02, 2023
DEEPAK GABA AND OTHERS versus STATE OF UTTAR PRADESH AND ANOTHER
Code of Criminal Procedure, 1973; Section 204 - Summoning order is to be
passed when the complainant discloses the offence, and when there is material
that supports and constitutes essential ingredients of the offence. It should not
be passed lightly or as a matter of course. When the violation of law alleged is
clearly debatable and doubtful, either on account of paucity and lack of clarity
of facts, or on application of law to the facts, the Magistrate must ensure
clarification of the ambiguities. Summoning without appreciation of the legal
provisions and their application to the facts may result in an innocent being
summoned to stand the prosecution/trial. Initiation of prosecution and
summoning of the accused to stand trial, apart from monetary loss, sacrifice of
time, and effort to prepare a defence, also causes humiliation and disrepute in
the society. It results in anxiety of uncertain times. (Para 21)
Indian Penal Code, 1860; Section 405, 406 - A mere dispute on monetary demand
does not attract the offence of criminal breach of trust - Mere wrong demand or
claim would not meet the conditions specified by Section 405 of the IPC in the
absence of evidence to establish entrustment, dishonest misappropriation,
conversion, use or disposal, which action should be in violation of any direction
of law, or legal contract touching the discharge of trust. (Para 15)
Code of Criminal Procedure, 1973; Section 202, 204 - While summoning an
accused who resides outside the jurisdiction of court, it is obligatory upon the
Magistrate to inquire into the case himself or direct investigation be made by a
police officer or such other officer for finding out whether or not there is
sufficient ground for proceeding against the accused. (Para 22)
Indian Penal Code, 1860; Section 415, 420 - The sine qua non of Section 415 of
the IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and the
absence of these elements would debase the offence of cheating - For the
offence of cheating, there should not only be cheating, but as a consequence
of such cheating, the accused should also have dishonestly adduced the
person deceived to deliver any property to a person; or to make, alter, or
destroy, wholly or in part, a valuable security, or anything signed or sealed and
which is capable of being converted into a valuable security. (Para 17)
Indian Penal Code, 1860; Section 464, 470 471 - The condition precedent of an
offence under Section 471 of the IPC is forgery by making a false document or
false electronic record or part thereof - A person is said to have made a ‘false
document’: (i) if he has made or executed a document claiming to be someone
else or authorised by someone else; (ii) if he has altered or tampered a
document; or (iii) if he has obtained a document by practising deception, or
from a person not in control of his senses. Unless, the document is false and
forged in terms of Sections 464 and 470 of the IPC respectively, the requirement
of Section 471 of the IPC would not be met. (Para 18)

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For Appellant(s) Mr. Vividh Tandon, Adv. Mr. Syed Jafar Alam, AOR; For Respondent(s) Mr. Sarvesh
Singh Baghel, AOR Mr. Harsh Pratap Shahi, Adv. Ms. Mayuri Raghuvanshi, AOR Mr. Vyom
Raghuvanshi, Adv.
JUDGMENT
SANJIV KHANNA, J.
This appeal by Jotun India Private Limited (JIPL), Deepak Gaba - Regional
Sales Manager - North (Decorative), and Sanjay Ramachandran Nair - Sales and
Marketing Director (Decorative), takes exception to the order dated 30th March 2022,
whereby the High Court of Judicature at Allahabad has dismissed their petition under
Section 482 of the Code of Criminal Procedure, 19731, challenging the summoning
order dated 19th July 2018 passed by the Additional Chief Judicial Magistrate, Court
No. 8, Ghaziabad, Uttar Pradesh, the operative portion of which, reads as under:
“On the basis of evidence available on records and on the basis of statement of Complainant,
the charge is appearing prima facie regarding showing forged demand of Rs. 6,37,252.16
against the Complainant by the Opponents Manager Jotun India Pvt. Ltd. Delhi, Chief
Manager Jotun India Pvt. Ltd. Andheri East, Mumbai.
Hence, the Opponents Manager Jotun India Pvt. Ltd. through Chief Manager Jotun India Pvt.
ltd. Andheri East, Mumbai is liable to (be) summoned for trial in section 406 I.P.C. for trial
prima facie.”
(emphasis supplied)
2. Interestingly, in the cause title of the private complaint filed by Shubhankar P.
Tomar, the proprietor of Adhunik Colour Solutions, respondent no. 2 - complainant,
states that the complaint was directed against:
(a) Manager, JIPL, having its office at Saket District Centre, New Delhi;
(b) Chief Manager, JIPL, having its office at Andheri East, Mumbai;
(c) Jotun S/S Hystadveien, Sanddefjord, Norway2; and
(d) Orkala ASA Nedre Skoyen vei, Oslo, Norway3.
3. The Manager and the Chief Manager, JIPL have not been named and identified
in the complaint. Neither does the summoning order name the Manager or the Chief
Manager, JIPL, who have been summoned to stand trial under Section 406 of the
Indian Penal Code, 18604.
4. It is an accepted and admitted position that JIPL is a company incorporated
under the laws of India and is a part of multinational group mainly dealing in decorative
paints and performance coatings (marine, protective and powder coatings). JIPL and
Shubhankar P. Tomar, the proprietor of respondent no. 2 - complainant, Ghaziabad,
Uttar Pradesh, had entered into dealership agreements5, for supply and purchase of
decorative paints in the State of Uttar Pradesh and Delhi region respectively.

1 For short, the ‘Code’.

2 For short, ‘Jotun S/S’.
3 For short, ‘Orkala ASA’.
4 For short, the ‘IPC’.
5 The dates of execution of these agreements are disputed. As per the appellants, the agreements are dated

11th April 2012 and 27th October 2013. As per respondent No. 2 - complainant, the agreements were executed
on 20th March 2012 and 30th January 2013. The complaint filed by respondent no. 2 - complainant refers to a
third agreement dated 16th May 2014. In the counter affidavit filed by respondent no. 2 - complainant before
this court, execution of the agreement dated 20th March 2012 is accepted. It is stated that despite repeated
protests, a copy of the agreement dated 20th March 2012 was not furnished to respondent no. 2 - complainant.

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5. On 27th September 2016, JIPL filed two separate criminal complaints under
Section 138 of the Negotiable Instruments Act, 18816 against Shubhankar P. Tomar,
on account of dishonour of cheque no. 463151 drawn on Canara Bank, Patparganj
Branch, Delhi for Rs. 4,99,610/-, and cheque no. 003252 drawn on HDFC Bank,
Chander Nagar, Ghaziabad, Uttar Pradesh for Rs. 1,93,776/, both dated 8th August
2016. As per the complaints, the cheques were drawn by respondent no. 2 -
complainant for discharge of the outstanding amount payable by him to JIPL. The
cheques on presentation were dishonoured due to ‘insufficient funds’ vide memo
issued by the respective banks on 12th August 2016. Thereupon, legal notice of
demand was issued on behalf of JIPL by speed post and courier on 20th August 2016,
which as per the tracking report of the postal authorities, was served on the Ghaziabad
address on 24th August 2016, albeit the notice issued at the Delhi address was
returned by the postal authorities with the remark “item delivery attempt/unclaimed”
dated 23rd August 2016.
6. The facts stated noted above, though admitted, do not find any mention in the
private complaint filed by respondent no. 2 - complainant on 23rd December 2017,
which is the subject matter of the present appeal and in which the summoning order
dated 19th July 2018 was passed by the Additional Chief Judicial Magistrate,
Ghaziabad, which order, as noticed above, has been upheld by the High Court.
7. The private complaint filed by respondent no.2- complainant accepts the factum
of commercial relationship between the parties, and states that the agreements dated
20th March 2012, 30th January 2013, and 16th May 2014 were executed. It is not
specifically alleged that copies of agreements dated 30th January 2013 and 16th May
2014 were not furnished. Regarding the agreement dated 20th March 2012, it is
alleged that the agreement was not provided and therefore, respondent no. 2 -
complainant had not carried out any work. However, supplies were made on the
Ghaziabad account. It is alleged that respondent no. 2 - complainant had given two
blank cheques bearing Nos. 580251 drawn on the Bank of Baroda and 003251 drawn
on HDFC Bank as security when they had executed the agreements dated 20th March
2012 and 30th January 2013. JIPL were not issuing bills on time despite reminders,
but would insist upon payment of money. One forged bill of Rs.79,752/- was raised
despite not ordering any goods, and this amount was shown as the balance payable
to JIPL as on 30th March 2013. This bill was withdrawn and taken back, as respondent
no. 2 - complainant had refused to make payment towards a false bill. Cheque bearing
no. 463151 drawn on Canara Bank was given as security for a new dealership/direct
customer agreement dated 16th May 2014. For this, written confirmation was taken
from Saurav Gaur, a person authorised by JIPL. Further, JIPL would send goods to
respondent no. 2 - complainant and issue bills in their name, without asking them.
Respondent no. 2 - complainant was also asked to collect the money from third
parties. These pleas, when escalated with JIPL, were ignored. Bill of Rs. 53,215/- in

However, no such assertion is made with regard to the agreement dated 30th January 2013 and 16th May
2014. In fact, an extract of the agreement dated 16th May 2014 is enclosed as Annexure R2/5 to the counter
affidavit. The appellants have relied on the clauses of the agreement dated 11th April 2012 enclosed as
Annexure P-1, as per which the dealer had agreed to deliver the products to JIPL’s direct clients, when
requested and if within a reasonable distance from the location of the dealer. Another clause permitted JIPL to
enter into a direct contractual relationship with specific customers, if in the opinion of JIPL they could be served
better by JIPL. In such situations the dealer had option to act as an intermediary. The agreement has several
clauses relating to prices, invoice and payment. For the purpose of this decision, we are not required to examine
and decide these controversies and disputes.
6 For short, the ‘NI Act’.

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the name of respondent no. 2 - complainant, was sent by JIPL to Manav Rachna
International directly. Another bill of Rs. 52,000/- was issued in the name of
respondent no. 2 - complainant, but they were not concerned whatsoever with the said
bill. The bills issued were paid by respondent no. 2 - complainant by bank transfer to
JIPL. Respondent no. 2 - complainant was falsely billed to the extent of Rs. 2,00,000/-
. Dhiraj and Saurabh Gaur of JIPL had also forged a bill of Rs. 4,33,633.47p.
Respondent no. 2 - complainant had protested by e-mail on 2nd December 2014 and
several reminders were sent thereafter. Respondent no. 2 - complainant had
thereupon informed JIPL on 13th July 2015 and 19th August 2015 that 242 buckets of
20 litres and 4 litres were available and should be taken back and adjusted against
the outstanding amount. However, no reply was received in spite of reminders. E-
mails were also written on 4th January 2016 and 11th January 2016. Since there was
no response from JIPL, respondent no. 2 - complainant had written letters to Jotun
S/S and Orkala ASA, the shareholders of JIPL. They had also sent a registered notice
to JIPL stating that Rs. 6,37,252.16p., shown as outstanding amount due and payable
by respondent no. 2 - complainant to JIPL, was forged and incorrect.
8. At the pre-summoning evidence stage, two witnesses, namely Shubhankar P.
Tomar and his employee Sakshi Tilak Chand, were examined. Shubhankar P. Tomar
had deposed that JIPL had violated the terms of service and had cheated him, and a
wrong outstanding amount of Rs. 6,37,252.16p. had been shown as payable. He had
not received a copy of the written agreement for the purchase of paints from JIPL. He
had furnished one blank cheque to JIPL. JIPL would not send invoices on purchase
of the goods. Thereafter, JIPL started selling goods to third parties showing that the
goods were being sold to respondent no. 2 - complainant. Despite raising objections
with the sales manager and manager, JIPL had continued to sell goods to third parties
in the name of respondent no. 2 - complainant. Demand of Rs. 6,37,252.16p. was
raised against them till the year 2016, in respect of which, a notice was also issued.
9. Sakshi Tilak Chand had deposed that he was working for respondent no. 2 -
complainant and used to interact with JIPL. There were discrepancies in the goods
ordered by respondent no. 2 - complainant, and the goods delivered by JIPL. The
customers would not accept the goods on account of colour mismatch. When the issue
was raised, JIPL had asked them to keep the goods, and they would take the goods
later. Despite visiting the offices of JIPL and filling up forms for return of the goods, no
concrete steps were taken. The goods were never taken back. JIPL would issue
statement of accounts without deducting or giving credit of the goods returned by
respondent no. 2 - complainant.
10. The private complaint filed by respondent no. 2 - complainant had invoked
Sections 405, 420, 471, and 120B of the IPC. However, by the order dated 19th July
2018, summons were directed to be issued only under Section 406 of the IPC, and
not under Sections 420, 471 or 120B of the IPC. We have quoted the operative and
reasoning portion of the summoning order, that records in brief the assertions in the
complaint, to hold that respondent no. 2 - complainant had shown that “a forged
demand of Rs. 6,37,252.16p had been raised by JIPL, which demand is not due in
terms of the statements made by Shubhankar P. Tomar and Sakshi Tilak Chand”. The
order states that respondent no. 2 - complainant had filed photocopy of “one” e-mail
as per documents 1 to 34, but the narration and the contents of the e-mail is not
adverted to and elucidated.

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11. In case of a private complaint, the Magistrate can issue summons when the
evidence produced at the pre-summoning stage shows that there is sufficient ground
for proceeding against the accused. The material on record should indicate that the
ingredients for taking cognizance of an offence and issuing summons to the accused
is made out.7
12. In the present case, the trial court did not issue summons under Sections 420
and 471 of the IPC, or for that matter, invoke the provision relating to conspiracy under
Section 120B of the IPC. Although the summoning order dated 19th July 2018 does
not deal with these sections of the IPC, we deem it imperative to examine the
ingredients of the aforesaid sections, and Section 406 of the IPC, and whether the
allegations made in the complaint attract the penal provisions under the relevant
sections of the IPC. We have undertaken this exercise in order to carry out a complete
and comprehensive analysis of the factual matrix and the legal provisions, and rule
out possibility of an error to the detriment of respondent no. 2 - complainant.
13. Section 406 of the IPC8 prescribes punishment for breach of trust which may
extend to three years or with fine or with both, when ingredients of Section 405 of the
IPC are satisfied. For Section 406 of the IPC to get attracted, there must be criminal
breach of trust in terms of Section 405 of the IPC.9
For Section 405 of the IPC to be attracted, the following have to be established:
(a) the accused was entrusted with property, or entrusted with dominion over
property;
(b) the accused had dishonestly misappropriated or converted to their own use that
property, or dishonestly used or disposed of that property or wilfully suffer any other
person to do so; and

7 Dipakbhai Jagdishchndra Patel v. State of Gujarat, (2019) 16 SCC 547; Sunil Bharti Mittal v. Central Bureau
of Investigation, (2015) 4 SCC 609; and Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749. Proviso to
Section 200 of the Code is not applicable in the present case.
8 406. Punishment for criminal breach of trust.—Whoever commits criminal breach of trust shall be punished

with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
9 405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion

over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied, which he has made touching the discharge of such
trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
Illustrations
(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall
be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed
criminal breach of trust.
(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between
A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of
rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions
and employs the money in his own business. A has committed criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's
advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal,
for Z, instead of buying Company's paper, here, thought Z should suffer loss, and should be entitled to bring a
civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal
breach of trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates
the property. A has committed criminal breach of trust.
(Explanations 1 and 2 and illustrations (a) and (e) to Section 405 of the IPC are excluded, as they are irrelevant.)

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(c) such misappropriation, conversion, use or disposal should be in violation of any
direction of law prescribing the mode in which such trust is to be discharged, or of any
legal contract which the person has made, touching the discharge of such trust.
14. Thus, criminal breach of trust would, inter alia, mean using or disposing of the
property by a person who is entrusted with or otherwise has dominion. Such an act
must not only be done dishonestly, but also in violation of any direction of law or any
contract express or implied relating to carrying out the trust.10
15. However, in the instant case, materials on record fail to satisfy the ingredients
of Section 405 of the IPC. The complaint does not directly refer to the ingredients of
Section 405 of the IPC and does not state how and in what manner, on facts, the
requirements are satisfied. Pre-summoning evidence is also lacking and suffers on
this account. On these aspects, the summoning order is equally quiet, albeit, it states
that “a forged demand of Rs. 6,37,252.16p had been raised by JIPL, which demand
is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand”.
A mere wrong demand or claim would not meet the conditions specified by Section
405 of the IPC in the absence of evidence to establish entrustment, dishonest
misappropriation, conversion, use or disposal, which action should be in violation of
any direction of law, or legal contract touching the discharge of trust. Hence, even if
respondent no. 2 - complainant is of the opinion that the monetary demand or claim is
incorrect and not payable, given the failure to prove the requirements of Section 405
of the IPC, an offence under the same section is not constituted. In the absence of
factual allegations which satisfy the ingredients of the offence under Section 405 of
the IPC, a mere dispute on monetary demand of Rs. 6,37,252.16p, does not attract
criminal prosecution under Section 406 of the IPC.
16. In order to apply Section 420 of the IPC, namely cheating and dishonestly
inducing delivery of property, the ingredients of Section 415 of the IPC have to be
satisfied. To constitute an offence of cheating under Section 415 of the IPC, a person
should be induced, either fraudulently or dishonestly, to deliver any property to any
person, or consent that any person shall retain any property. The second class of acts
set forth in the section is the intentional inducement of doing or omitting to do anything
which the person deceived would not do or omit to do, if she were not so deceived.
Thus, the sine qua non of Section 415 of the IPC is “fraudulence”, “dishonesty”, or
“intentional inducement”, and the absence of these elements would debase the
offence of cheating. 11 Explaining the contours, this Court in Mohd. Ibrahim and
Another v. State of Bihar and Others12, observed that for the offence of cheating,
there should not only be cheating, but as a consequence of such cheating, the
accused should also have dishonestly adduced the person deceived to deliver any
property to a person; or to make, alter, or destroy, wholly or in part, a valuable security,
or anything signed or sealed and which is capable of being converted into a valuable
security.
17. In the present case, the ingredients to constitute an offence under Section 420
read with Section 415 of the IPC are absent. The presummoning evidence does not

10 Sudhir Shantilal Mehta v. Central Bureau of Investigation, (2009) 8 SCC 1.

11 Iridium India Telecom Limited v. Motorola Incorporated and Others, AIR 2011 SC 20.
12 (2009) 8 SCC 751. This Court, in this case, has cautioned that the ratio should not be misunderstood, to

record the clarification, which in the present case, in our opinion, is not of any avail and help to respondent no.
2 - complainant. We respectfully concur with the clarification as well as the ratio explaining Section 415, 464
etc. of the IPC.

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disclose and establish the essential ingredients of Section 415 of the IPC. There is no
assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty,
fraud, or intentional inducement to deliver a property. It is not the case of respondent
no. 2 - complainant that JIPL had tried to deceive them, either by making a false or
misleading representation, or by any other action or omission; nor is it their case that
JIPL had offered any fraudulent or dishonest inducement to deliver a property. As
such, given that the ingredients of Section 415 of the IPC are not satisfied, the offence
under Section 420 of the IPC is not made out.
18. Section 471 of the IPC13 is also not attracted. This Section is applicable when
a person fraudulently or dishonestly uses as genuine any document or electronic
record, which he knows or has reasons to believe to be a forged document or
electronic record. This Court in Mohd. Ibrahim and Another (Supra), has elucidated
that the condition precedent of an offence under Section 471 of the IPC is forgery by
making a false document or false electronic record or part thereof. Further, to
constitute the offence under Section 471 of the IPC, it has to be proven that the
document was “forged” in terms of Section 47014, and “false” in terms of Section 464
of the IPC15. Section 470 lays down that a document is ‘forged’ if there is: (i) fraudulent
or dishonest use of a document as genuine; and (ii) knowledge or reasonable belief
on the part of the person using the document that it is a forged one. Section 470
defines a forged document as a false document made by forgery. As per Section 464
of the IPC, a person is said to have made a ‘false document’: (i) if he has made or
executed a document claiming to be someone else or authorised by someone else;
(ii) if he has altered or tampered a document; or (iii) if he has obtained a document by
practising deception, or from a person not in control of his senses. Unless, the
document is false and forged in terms of Sections 464 and 470 of the IPC respectively,
the requirement of Section 471 of the IPC would not be met.
19. In the counter affidavit filed by respondent no. 2 - complainant, it is submitted
that a few bills were faked/forged, as the goods were not ordered. Reference is made
to balance of Rs. 79,752/- shown on 30th March 2013, which was objected to and

13 471. Using as genuine a forged document or electronic record.—Whoever fraudulently or dishonestly uses as
genuine any document or electronic record which he knows or has reason to believe to be a forged document
or electronic record, shall be punished in the same manner as if he had forged such document or electronic
record.
14 470. Forged document.—A false document or electronic record] made wholly or in part by forgery is

designated “a forged document or electronic record”

15 464 – Making a false document .— A person is said to make a false document or false electronic record—

First.—Who dishonestly or fraudulently—

(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic
signature,with the intention of causing it to be believed that such document or part of document, electronic
record or 2 [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the
authority of a person by whom or by whose authority he knows that it was not made, singed, sealed, executed
or affixed; or
Secondly.—Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a
document or an electronic record in any material part thereof, after it has been made, executed or affixed with
electronic signature either by himself or by any other person, whether such person be living or dead at the time
of such alteration; or
Thirdly.—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an
electronic record or to affix his electronic signature on any electronic record knowing that such person by reason
of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not
know the contents of the document or electronic record or the nature of the alteration.

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thereupon as per the complaint itself the demand/bill was withdrawn. This would not
make the bill a forged document or false document, in terms of Sections 470 and 464
of the IPC. The complaint was made in the year 2017, four years after the bill/claim
had been withdrawn, reflecting no criminal intent. The bill was not fake or forged, and
at best it could be stated that it was wrongly raised. Moreover, the presummoning
evidence is silent with regard to this bill and mens rea on the part of the accused is
not shown and established. Same would be the position with regard to the bill/invoice
of Rs. 53,215/- which was as per the complaint, sent directly to Manav Rachna
International at Faridabad. The bill/invoice is not doubted as ‘forged’ or ‘false’ within
the meaning of Sections 470 and 464 of the IPC. No doubt, Adhunik Colour Solutions
is mentioned as the buyer, and Manav Rachna International as the consignee, albeit
the invoice was issued by JIPL. Pre-summoning evidence does not help and make
out a case predicated on this bill/invoice. In the counter affidavit filed before us, it is
alleged that since this bill was sent to Faridabad, JIPL had added the GST in the
invoice. It is argued that had respondent no. 2 - complainant supplied the goods,
instead of GST, VAT as applicable in Delhi would have been levied, as respondent
no. 2 - complainant was based in Delhi. This argument is rather fanciful and does not
impress us to justify summoning for the offence under Section 471 of the IPC. Besides,
the assertion is not to be found in the complaint, and cannot be predicated on the pre-
summoning evidence. For completeness, we must record that the appellants have
placed on record the dealership agreement dated 11th April 2012, which, inter alia
states that JIPL has a discretion to establish direct contractual relationship with
specific customers, if JIPL feels they can be served better. Further, in such a situation,
the dealer, if JIPL agrees, can act as an intermediary. Assuming the bill/invoice had
wrongly recorded respondent no. 2 - complainant as the buyer, it is not doubted that
Manav Rachna International was the consignee. At best, respondent no. 2 -
complainant would not be liable, had Manav Rachna International failed to pay. Non-
payment is also not alleged in the complaint or the pre-summoning evidence. Reliance
on objections vide e-mails dated 4th July 2014 and 21st July 2014 are of no avail, as
they are for the period prior to 31st July 2014, when the bill/invoice was raised.
20. It is evident from the pre-summoning evidence led and the assertions made in
the criminal complaint that the dispute raised by respondent no. 2 - complainant
primarily pertains to settlement of accounts. The allegations are: (i) goods supplied by
JIPL were not as per the requirements and demands of respondent no. 2 -
complainant, (ii) goods supplied were different from the order placed, and (iii) goods
lying with, and returned by respondent no. 2 - complainant have not been accounted
for. These assertions, even if assumed to be correct, would not fulfil the requirements
of Section 405 of the IPC, or for that matter Sections 420 or 471. The material on
record does not reflect and indicate that JIPL indeed had the dishonest/culpable
intention for the commission of the alleged offences under the IPC. Unless the
ingredients of aforesaid Sections of the IPC are fulfilled, the offence under Section
120-B of the IPC, for criminal conspiracy, would not be made. In fact, a combined
reading of the complaint and the pre-summoning evidence does not disclose any
element of criminal conspiracy as per Section 120-A of the IPC. The complaint
discloses a civil dispute and grievance relating to the claim made by JIPL. What is
challenged by respondent no. 2 - complainant is the demand of Rs. 6,37,252.16p
raised by JIPL as the amount payable till the year ending 2016. This assertion made
by JIPL is questioned as incorrect. The demand, even if assumed to be wrong, would
not satisfy the ingredients of Section 405, or Sections 420 or 471 of the IPC, so as to

8
justify the summoning order. As noted above, JIPL had filed a criminal case under
Section 138 of the NI Act as two cheques for Rs. 1,93,776/- and Rs. 4,99,610/- issued
by them, on presentation, were dishonoured on account of ‘insufficient funds’.
21. We are, therefore, of the opinion that the assertions made in the complaint and
the pre-summoning evidence led by respondent no. 2 - complainant fail to establish
the conditions and incidence of the penal liability set out under Sections 405, 420, and
471 of the IPC, as the allegations pertain to alleged breach of contractual obligations.
Pertinently, this Court, in a number of cases, has noticed attempts made by parties to
invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by
camouflaging allegations which were ex facie outrageous or pure civil claims. These
attempts are not be entertained and should be dismissed at the threshold. To avoid
prolixity, we would only like to refer to the judgment of this Court in Thermax Limited
and Others v. K.M. Johny16, as it refers to earlier case laws in copious detail. In
Thermax Limited and Others (Supra), it was pointed that the court should be
watchful of the difference between civil and criminal wrongs, though there can be
situations where the allegations may constitute both civil and criminal wrongs. The
court must cautiously examine the facts to ascertain whether they only constitute a
civil wrong, as the ingredients of criminal wrong are missing. A conscious application
of the said aspects is required by the Magistrate, as a summoning order has grave
consequences of setting criminal proceedings in motion. Even though at the stage of
issuing process to the accused the Magistrate is not required to record detailed
reasons, there should be adequate evidence on record to set the criminal proceedings
into motion. The requirement of Section 204 of the Code is that the Magistrate should
carefully scrutinize the evidence brought on record. He/she may even put questions
to complainant and his/her witnesses when examined under Section 200 of the Code
to elicit answers to find out the truth about the allegations. Only upon being satisfied
that there is sufficient ground for summoning the accused to stand the trial, summons
should be issued.17 Summoning order is to be passed when the complainant discloses
the offence, and when there is material that supports and constitutes essential
ingredients of the offence. It should not be passed lightly or as a matter of course.
When the violation of law alleged is clearly debatable and doubtful, either on account
of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate
must ensure clarification of the ambiguities. Summoning without appreciation of the
legal provisions and their application to the facts may result in an innocent being
summoned to stand the prosecution/trial. Initiation of prosecution and summoning of
the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to
prepare a defence, also causes humiliation and disrepute in the society. It results in
anxiety of uncertain times.
22. While summoning an accused who resides outside the jurisdiction of court, in
terms of the insertion made to Section 202 of the Code by Act No. 25 of 2005, it is
obligatory upon the Magistrate to inquire into the case himself or direct investigation
be made by a police officer or such other officer for finding out whether or not there is

16(2011) 13 SCC 412.

17Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others, (2019) 16 SCC 610;
Pepsi Foods Ltd. (Supra); and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420.

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sufficient ground for proceeding against the accused.18 In the present case, the said
exercise has not been undertaken.
23. The order sheet of the trial court enclosed with the appeal reveals that
notwithstanding that the summoning order was limited to unnamed Manager and Chief
Manager of JIPL, the Additional Chief Judicial Magistrate had deemed it appropriate
to issue non-bailable warrant. The non-bailable warrant was not issued in the name
of any person but by designation against the Chief Manager JIPL, Andheri East,
Mumbai. This was also one of the reasons that had prompted the appellants to the file
the petition under Section 482 of the Code.
24. We must also observe that the High Court, while dismissing the petition filed
under Section 482 of the Code, failed to take due notice that criminal proceedings
should not be allowed to be initiated when it is manifest that these proceedings have
been initiated with ulterior motive of wreaking vengeance and with a view to spite the
opposite side due to private or personal grudge.19 Allegations in the complaint and the
pre-summoning evidence on record, when taken on the face value and accepted in
entirety, do not constitute the offence alleged. The inherent powers of the court can
and should be exercised in such circumstances. When the allegations in the complaint
are so absurd or inherently improbable, on the basis of which no prudent person can
ever reach a just conclusion that there is sufficient wrong for proceeding against the
accused, summons should not be issued.
25. For the aforesaid reasons, the appeal is allowed. The order of the High Court
dated 30th March 2022 in the Application u/s 482 No. 31828 of 2019; the summoning
order dated 19th July 2018 in the Complaint No. 3665 of 2017 and the order issuing
non-bailable warrant dated 3rd June 2019 in the above complaint passed by the
Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad, Uttar Pradesh are set
aside and quashed.

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18 Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638; Abhijit Pawar v. Hemant Madhukar Nimalkar, (2017)
3 SCC 528; and Birla Corporation Limited (Supra).
19 Birla Corporation Limited (Supra); Mehmood Ul Rehman (Supra); R.P. Kapur v. State of Punjab, AIR 1960

SC 866; and State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp (1) SCC 335.

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