BHUPENDRA SHAH v. MAHENDRA — 1993 DIGILAW 67 (MP)

A. R. TIWARI, J. ( 1 ) THIS order shall also govern the disposal or the under noted cases: (1) Misc. Cr. C. No. 2279/92 Prabhod Chandra v. Mahendra. (2) Misc. Cr. C. No. 2258/92 Kanak Bhai v. State, of M. P. and another. (3) Misc. Cr. C. No. 2257/92 Kanak Bhai v. State of M. P. and another. (4) Misc. Cr. C. No. , 2256/92 Kanak Bhai v. State of M. P. and another. (5) Misc. Cr. C. No. 2255/92 Kanak Bhai v. State of M. P. and another. (6) Misc. Cr. C. No. 2307/92 B. L. Purohit v. Mahendra. (7) Misc. Cr. C. No. 2308/92 B. L. Purohit v. Mahendra. (8) Misc. Cr. C. No. 2282/92 Prabhod chandra v. Mahendra. (9) Misc. Cr. C. No. 2281/92 Prabhod chandra v. Mahendra. (10) Misc. Cr. C. No. 2280/90 Prabhod chandra v. Mahendra. (11) Misc. Cr. C. No. 2005/92 Bhupendra v. Mahendra. (12) Misc. Cr. C. No. 2004/92 Bhupendra v. Mahendra. (13) Misc. Cr. C. No. 2003/92 Bhupendra v. Mahendra. ( 2 ) ON private complaints filed by the non-applicant Mahendra, the Judicial Magistrate First Class, Barwani took the cognizance, registered the cases under section 420 I. P. C. and 138 Negotiable Instrument Act and directed issuance of the process. Aggrieved by this, the applicants have prayed for quashment in these petitions on grounds, prodigious in number. ( 3 ) ADUMBRATED in brief the facts leading to such proceedings are that Nutan Mills Ahmedabad; is a Public Ltd: Company incorporated under tile Companies Act. The complainant (non applicant) supplied cotton bales to this Mill and obtained cheques covering the value of the goods supplied. The Banks, on presentation, however, declined to honour the cheques on the ground that the same exceeded arrangements. ( 4 ) IT is urged that this Mill became a sick unit and consequently proceedings were initiated before the Board for Industrial and Finance construction on 3/12/1990. The Bank had advanced huge amount (about seven crores) to the Mill. The State Government saw the continuance of the working of the Mill so as to safeguard the interests of the employees. The persons, being proceeded against are non-signatories to the cheques in question and are not recipients of benefits as such. No notices, as envisaged by Section 138 Negotiable Instrument Act, were served. The State Government saw the continuance of the working of the Mill so as to safeguard the interests of the employees. The persons, being proceeded against are non-signatories to the cheques in question and are not recipients of benefits as such. No notices, as envisaged by Section 138 Negotiable Instrument Act, were served. ( 5 ) THE complainant, feeling himself cheated despite the new penal Section 138 Negotiable Instrument Act on such a large scale, presented the complaint in the Court and obtained issuance of process as above. ( 6 ) I have heard learned counsel for the parties in all these petitions. ( 7 ) THE applicants finding themselves enmeshed in embroglio and feeling lugged in to the prosecution, pray that the cases be anaesthetized at their infancy in exercise of the inherent powers of the Court. It is asserted-that the proceeding have been evilishly engineered with a surge of an urge to exert undue pressure on applicants who are demonstrably unconnected with the transactions. The non-applicant, on the other hand, offers the vehement oppugnation and contents that the proceedings are on firm foundation and are not at all deciduous. It is Strenuously submitted that anyone lulled into belief by protective umbrella of cheques must have his full say in the Court. The impetuous of opposition is climaxed by the plea that law in the face of such deception and consequent injustice cannot stay petrified and has to be seen on talking terms with justice. It is Strenuously submitted that anyone lulled into belief by protective umbrella of cheques must have his full say in the Court. The impetuous of opposition is climaxed by the plea that law in the face of such deception and consequent injustice cannot stay petrified and has to be seen on talking terms with justice. ' ( 8 ) LOOKING to the law, it is clear that the tenebility of the complaint is assailable on the grounds succinctly enumerated by the Apex Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, it is observed that: (1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. ( 9 ) IT is also trite position of law that objection is tenable even at the preliminary stage. In Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandroji Rao Angre and others, it is held that:the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the in controverted allegation as made prima facie establish the offence, It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique- purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal, prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. ( 10 ) FACTS, jejune in size, have been stated, Law, luculent enough, has been pointed, Yet the fact remained that the applicants arraigned in these cases, filed no objections in the Court below and rushed to this Court seeking quashment. They have chosen the course here to label the proceedings as inutile and futile. The thrust is on infecundity of criminal cases. ( 11 ) IT may be observed that the powers under Section 482 Cr. P. C. Can be invoked only when redress under any other provision was unavailable. The implication is that no one should have recourse to short-cut which is often a wrong cut in life as well as in law. The inherent power is certainly circumscribed and is intended to be used rather sparingly. In Maliku Limye v. State of Maharashtra, it is formulated as under: The following principles may be stated in relation to the exercise of the inherent power of the High Court: (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code. ( 12 ) IT cannot be gainsaid that proper opportunity is available in the lower Court. In K. M. Mathew v. State of Kerela, it is laid down as under:it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if, he is satisfied on reconsideration of the complaint that there is no offence for which the accused could tried. It is his judicial discretion. The Magistrate may drop the proceedings if, he is satisfied on reconsideration of the complaint that there is no offence for which the accused could tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. ( 13 ) SUCH arrival here is thus, an onslaught on the channel and is bereft of oxygen for its sustenance. It deserves to be retrojected. I, therefore, decline to go into the merits of the matter and opt to leave the issues open reticently for examination, for what-ever worth, by the Trial Court. ( 14 ) IN the circumstances, even while saying monosyllabic no to the prayer at this stage, it is observed thata) The applicants (accused persons in Court below in each criminal cases) may raise all objections as may be available against the alleged tenability of the criminal cases, even at the preliminary stage as noted above. On such objection being preferred, the trial Court shall consider the same and render order in accordance with lawb) The applicants (accused persons in Court below in each Criminal Case) may file the applications for general exemption from appearance and seek permission of being represented in the proceedings through their duly appointed counsel in the Court below on proper grounds, if available, On such applications being filed, the Court below shall consider the same sympathetically in accordance with law. ( 15 ) WITH these observations, the petitions stand dismissed. ( 16 ) IT is directed that the records of the Court below shall be returned immediately. The parties shall appear before the Court below on 22/2/1993. ( 17 ) LET a copy of this order be placed in the records of the aforesaid petitions. ( 18 ) BEFORE parting with this case, I must point out a glaring feature as is clear from the records of the Court below. It is found from the proceedings that the order contained a direction that notices be issued for the appearance of the accused persons. This word notice is substituted by the words Gir. ( 18 ) BEFORE parting with this case, I must point out a glaring feature as is clear from the records of the Court below. It is found from the proceedings that the order contained a direction that notices be issued for the appearance of the accused persons. This word notice is substituted by the words Gir. Warrant without initials of the Presiding Officer and without any indication of reasons as to why and how this change from notice to nonbailable warrants was made. On the face of it, it is a serious matter in that it entails nature of process by which the accused persons are required to appear in the Court The District Judge, Mandleshwar is, therefore, directed to make an enquiry into all the aforesaid cases about this change in the order-sheet and submit his report to, this Court-in one month. The Additional Registrar of this Court is directed to issue this direction by separate letter to the District Judge. Mandleshwar along with a copy of this order. Application Rejected. .