FACTS OF THE PRESENT CASE: 3. On the basis of the statement made by the complainant which was in line with the complaint filed to the police, an application was filed under Section 319 Cr.PC by the prosecution for summoning the present appellant, Accountant S.D.Sharma and Bank Manager M.L.Verma, State Bank of India and the then Post Master of Post Office, Gonda. The same was rejected by the Additional Chief Judicial Magistrate vide order dated 6th May, 2017 finding that sufficient material was not available to summon the accused. The order was challenged by the prosecution by filing revision. The learned Sessions Judge vide order dated 4 th July, 2017 allowed the Revision Petition and remitted the matter to the Trial Court for disposal afresh after affording opportunity of hearing to the parties. Thereafter, vide order dated 29th August, 2017 the learned Additional Chief Judicial Magistrate, Aligarh allowed the application and directed for summoning of the present appellant, Accountant S.D. Sharma and Bank Manager M.L. Verma and the then Post Master of Gonda Post Office.
4. In the aforesaid order, no reasons were assigned except stating that for the reasons stating by the Sessions Judge in his order by which the matter was remitted back for consideration afresh, the application is allowed and the present appellant, Accountant S.D.Sharma, Bank Manager M.L.Verma and the then Post Master of Gonda Post Office were directed to be summoned. The appellant being aggrieved by the aforesaid order approached the High Court at Allahabad. The High Court vide the impugned order dismissed the Criminal Miscellaneous Application filed under Section 482 CrPC only with general observations and 4 without noticing the facts of the case. The impugned order merely mentioned that no illegality or impropriety was found in the order which could persuade the High Court to interfere. The order reflects non-application of judicial mind. The order is under challenge before this Court.
9. The parameters on which additional accused could be summoned in an application filed under Section 319 CrPC are well settled in the case of Hardeep Singh and Ors.’s case.
10. In Sagar vs. State of U.P. & Anr. (2022) 6 SCC 389, it is stated as under:
“9. The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so 8 warrant and the crucial test as notice above has to be applied is one which is more that prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction….”
11. If the case in hand is examined on the parameters laid down in the aforesaid judgments, in our opinion, no case is made out against the appellant at this stage for his summoning as an additional accused merely because he once had supplied a copy of the statement of account to the complainant which was either dim or mis-printed. Based on this material, opinion cannot be formed that he was in connivance with the accused who allegedly indulged in cheating the complainant by fraudulent withdrawal from his account. He is not authorized either to approve withdrawal or to deal with the account of the complainant.
PARTY: MEENU PRAKASH BHANTU vs. STATE OF UTTAR PRADESH & ANR. – CRIMINAL APPEAL NO. 738 OF 2023 (@ SLP(CRL.) NO.9665 OF 2017) – March 16, 2023
Appeal Allowed.
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