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1967 DIGILAW 274 (ALL)

Balwant Rai v. Shiv Narain Tandon

1967-08-08

D.P.UNIYAL

body1967
ORDER D.P. Uniyal, J. - This is an application u/s 561-A Code of Criminal Procedure for quashing proceedings in Case No. 446 of 1964, Shiv Narain v. Ram Niwas, pending in the court of the Judicial Magistrate, Kanpur. 2. The case proceeded on a complaint filed by one Shiv Narain Tandon Under Sections 403 and 420 IPC. The complaint was against two persons, Ram Niwas and the present Applicant Balwant Rai alleging that the Applicant had obtained double payment on the basis of two hundis in respect of a transaction for supply of 100 bales of cotton to Sakseria Cotton Mills, Ltd., Bombay. In paragraph 5 of the complaint it was alleged that the firm of accused Ram Niwas drew a hundi for Rs. 33,500/- on M/s. Sakseria Cotton Mills, Bombay in respect of the price of 100 bales of cotton and endorsed it in favour of the firm of the Applicant Lalchand Balwant Rai. For reasons which are not clear the said hundi was considered defective and accused No. 1 Ram Niwas asked the complainant to make fresh payment himself. Thereupon accused No. 1 drew a hundi for Rs. 31,500/- on the complainant and endorsed it in favour of the Applicant firm. The Applicant then presented the said hundi to the complainant at Kanpur and obtained on its basis Rs. 31,500/- from him. 3. It appears that the Applicant had already obtained a sum of Rs. 33,500/- in respect of the said transaction on the basis of the hundi drawn on Messrs Sakseria Cotton Mills, Bombay. It was therefore alleged that the Applicant had cheated the complainant by obtaining double payment in respect of one and the same transaction. Accordingly Ram Niwas and the Applicant were both prosecuted for offences punishable Under Sections 420 and 403 IPC. The Magistrate after examining the complainant and his witnesses framed a charge against the accused. One of the accused, namely, Ram Niwas, moved this Court u/s 439 for quashing the charge. That revision was dismissed by this Court on 15-7-1966 on the finding that there was sufficient material on the record to sustain the charge. 4. This application u/s 561-A Code of Criminal Procedure has now been made by the co-accused on the same allegations. The first question for consideration is whether an application u/s 561-A is maintainable. Section 561 A does not confer any new power on the court. 4. This application u/s 561-A Code of Criminal Procedure has now been made by the co-accused on the same allegations. The first question for consideration is whether an application u/s 561-A is maintainable. Section 561 A does not confer any new power on the court. It merely preserves the inherent powers of the court. It reads as follows: Section 561A--Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Courts or otherwise to secure the ends of justice. It is obvious that the provisions of Section 561-A cannot be invoked where there it a specific provision of the Code under which the aggrieved party can seek appropriate remedy. It was open to the Applicant like his co-accused to approach this Court u/s 439 Code of Criminal Procedure for setting aside the order of the Magistrate framing the charge. He, however, did not file any revision in this Court. It is now settled that a remedy by way of Section 561-A cannot be resorted to where there is a specific provision of the Code under which the aggrieved party can invoke the jurisdiction of the High Court. 5. In Khushi Ram v. Hashim and Ors. AIR 1959 SC 542 it was held that the inherent powers of the High Court u/s 561-A cannot be invoked in regard to natters which are directly covered by specific provisions of the Code and hence the High Court was clearly in error in invoking that section in quashing a committal proceeding which is a matter directly covered by Section 215 Code of Criminal Procedure. 6. The same view was reiterated in a subsequent case, R.P. Kapur Vs. The State of Punjab, AIR 1960 SC 866 . There also it was pointed out that the inherent powers u/s 561-A cannot be exercised in regard to matters specifically covered by the other provisions of the Code. 6. The same view was reiterated in a subsequent case, R.P. Kapur Vs. The State of Punjab, AIR 1960 SC 866 . There also it was pointed out that the inherent powers u/s 561-A cannot be exercised in regard to matters specifically covered by the other provisions of the Code. Where, however, there is no specific prevision of the Code which might cover the order sought to be quashed the High Court may, in exercise of its inherent jurisdiction, u/s 561-A, interfere with the order of the subordinate court, if it is satisfied that the continuance of proceedings in the court below would amount to an abuse of the process of the court. 7. Apart from the fact that the present application u/s 561-A is barred by reason of the fact that an alternative and effective remedy provided by the Code was not availed of by the Applicant, there is the further objection that in this case the allegations made in the complaint, if believed, do make out a prima facie case against the Applicant. 8. For the reasons given above I see no force in this application. It is accordingly dismissed.