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2006 DIGILAW 2366 (PNJ)

Antima Joshi v. Sandhaya Finance Limited

2006-05-30

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. The petitioner has filed this petition Under Section 482 of the Code of Criminal Procedure for quashing/dropping the entire proceedings initiated against her on a complaint filed by the respondent Under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act") and for setting aside the order dated 20.12.2005 passed by Judicial Magistrate 1st Class, Hisar, whereby the application filed by the petitioner for re-calling the summoning order dated 16.4.2004 and the order dated 4.6.2005 stating the substance of accusation (charge) to the petitioner has been dismissed. 2. In this case, the petitioner stood as a guarantor of Shyam Bajpai and Chander Kanta who had taken a loan of Rs. 4,00,000/- from the complainant company. These loanees committed default in payment of installment as undertaken by them in the agreement. In terms of the agreement, the petitioner, being guarantor, was liable to pay the loan amount in case of default by loanees. In discharge of that liability, the petitioner endorsed the cheque in question for an amount of Rs. 2,40,00/- in favour of the complainant company. The complainant company, as holder in due course, presented the said cheque to the drawee bank through the complainants bank. The same was dishonoured on account of insufficient funds, as intimated vide dishonour memo dated 17.1.2004. Hence, the complaint was filed, in which the petitioner was summoned vide order dated 16.4.2004. The petitioner appeared before the Judicial Magistrate on 3.5.2005 and was released on bail and the case was adjourned for 4.6.2005 for compromise. On 4.6.2005, the compromise could not be arrived at between the parties and notice of accusation was served upon the petitioner to which she did not plead guilty and claimed trial. Thereafter, the case was adjourned to 25.10.2005 for evidence of the complainant. 3. Subsequently, on the adjourned date i.e. on 25.10.2005, the petitioner filed an application for re-calling the summoning order as well as order dated 4.6.2004, whereby the particular of accusation was stated to her, alleging therein that on 4.6.2005, notice of accusation was served without hearing her, and her signatures were taken by the Reader on a blank paper, on the instructions of the Presiding Officer, on which the contents of particulars of accusation were written. It was alleged that the charge/notice was also not framed in her presence nor the contents of the same were read over to her. It was also alleged that in the said order, the presence of her counsel i.e. Sh. Anand Shankar was marked, but he was not present on that day in the Court. Rather, he was present in Delhi and attended the Court proceedings there. On merits, it was alleged that the petitioner was mere a previous holder in respect of the cheque in question, therefore, the proceedings Under Section 138 of the Act should not have been initiated against her. 4. The aforesaid application has been dismissed by the trial Court while observing that on the relevant day, the petitioner along with her counsel was very much present in the Court. On 3.5.2005, a Vakalatnama was filed on behalf of the petitioner by 3 Advocates. It has been observed that all those Advocates were from Delhi and they were not known by the Court by name. However, it is observed that when the compromise could not be arrived at between the parties, they were heard regarding serving of notice of accusation. The Advocate of the petitioner was present on that day, though name of Advocate might have been wrongly written in the order as the court was not familiar with the names of the Advocates. No illegality or irregularity was found in the order dated 4.6.2005. On merits, it has been observed that at this stage, the trial Court has no power to discharge the accused or review or re-call the summoning order. 5. This order has been challenged by the petitioner in the instant petition with the additional prayer of dropping/quashing the proceedings initiated on the complaint filed by the respondent. 6. I have heard the arguments of learned Counsel for the petitioner. 7. In this petition, it has been alleged that the trial Court in haste and without appreciation of the necessary facts and circumstances and without considering the documents on record has served notice of accusation upon the petitioner and that too in absence of her counsel by obtaining her signatures on blank papers. In my view, the petitioner has levelled very serious and reckless allegations against the trial Court without there being any basis and foundation. Undisputedly, the petitioner was present in the trial Court at Hisar on 4.6.2005. She came from Delhi. In my view, the petitioner has levelled very serious and reckless allegations against the trial Court without there being any basis and foundation. Undisputedly, the petitioner was present in the trial Court at Hisar on 4.6.2005. She came from Delhi. As per the Vakalltnama filed on 3.5.2005, she was being represented by 3 Advocates of Delhi. In reply to the application filed by complainant through affidavit, copy of which has been annexed with this petition, it was stated by the complainant that the petitioner along with her two Advocates was very much present in court when notice of accusation was served upon her by the Court, and the order dated 4.6.2005 was passed by the Court after hearing both the parties. The notice of accusation was duly explained to the petitioner and thereafter she put her signatures. In para 3 of her application, the petitioner only states that at the time of framing of notice/charge, she was not heard nor the contents of the notice/charge were read over to and made understand to her. She alleged that her signatures were taken by Reader on instructions of the Presiding Officer on blank paper. She did not state that at the time, she was not represented by any Advocate. She has only stated that the presence of her counsel Shri Anand Shankar, Advocate, was wrongly marked as he was not present on that day. The trial Court has observed that on the relevant day, the petitioner was being represented by an Advocate and she was having the knowledge who was that Advocate. It appears that merely because the presence of Shri Anand Shankar, Advocate, was marked, who might not have been present on that day, but some other Advocate was present, the petitioner wants to take benefit and has levelled false and reckless allegations against the court proceedings. No oblique motive or any mala fide has been alleged against the trial Judge, It is well settled that statement of fact recorded in the order of the Court is conclusive. Casting baseless allegations and causing aspersions upon the correctness of the Court proceedings amounts to undermining the dignity of the Court. In my opinion, the petitioner has levelled false allegations against the Court proceedings in a most irresponsible manner. A litigant as well as his Advocate have a responsibility to uphold the dignity of the Court. Casting baseless allegations and causing aspersions upon the correctness of the Court proceedings amounts to undermining the dignity of the Court. In my opinion, the petitioner has levelled false allegations against the Court proceedings in a most irresponsible manner. A litigant as well as his Advocate have a responsibility to uphold the dignity of the Court. For petty gains, the litigant should not indulge un-leveling irresponsible and reckless allegations against the Court proceedings. It is expected from a litigant that he should maintain self-restrain, respectful attitude towards the court and should present correct facts before the Court with a balanced mind and without overstatement, suppression, distortion or embellishment. It is also expected from an Advocate who is officer of the Court to help and strengthen the administration of justice by upholding the dignity and majesty of the Court. 8. After hearing counsel for the petitioner, even on merit, I do not find any ground to quash/drop the proceedings initiated against the petitioner or to set aside the im pugned orders dated 16.4.2004 and 20.12.2005. 9. Dismissed with costs of Rs. 10,000/-.