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2007 DIGILAW 1131 (PAT)

Renu Singh v. State Of Bihar

2007-07-12

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. This application u/s. 482 of the Code of Criminal Procedure is for quashing the entire criminal proceeding including the order dated 2.12.2004 passed by Sri Aditya Kumar Trivedi, VIIIth Additional Sessions Judge, Gaya, in Criminal Revision No. 13 of 2004/42 of 2004, by which he has affirmed the order taking cognizance dated 21.1.2002 passed by Sri I.C. Chaturvedi, Judicial Magistrate, 1st Class, Gaya, in Complaint Case No. 1194 of 2001. 2. It appears that one Mantu Kumar a practicing Lawyer at Gaya Civil Court filed the aforesaid complaint inter alia alleging that on 30.5.2000 a Motor Accident Claim Case No.33 of 2000 was filed on behalf of accused No.1 (Renu Singh) and two others against United India Insurance Company Ltd. on account of accidental death of Arvind Kumar, husband of the accused No.1. It is said that since accused No.1 along with accused No.2 had shown their inability to pay Court fees as also the fees of the Senior and Junior Counsels and other day to day expenses, it was agreed between the complainant and the accused that the entire expenses of the claim case till its disposal would be borne by the complainant and after disposal of the case the accused No.1 will pay Rs. 20,000.00 to the complainant. 3. It is also said that under the aforesaid terms and conditions the complainant paid the Court fees and worked on behalf of accused persons and in due course the parties entered into a compromise, whereunder the Insurance Company paid Rs. 1,25,000.00 and the claim case ended in a compromise. 4. It is also said that under the aforesaid terms and conditions agreed to between the complainant and the accused, the accused issued a cheque of Rs. 20,000.00 which was dis-honoured due to instruction of the drawer as also due to insufficient funds in the account. It is further said that even after repeated requests, the accused persons failed to pay the aforesaid amount to the complainant. Accordingly, the instant complaint case was filed for offences under Ss. 420 and 120-B of the Indian Penal Code and 138 of Negotiable Instrument Act. (hereinafter referred to as "N.I. Act"). 5. It is further said that even after repeated requests, the accused persons failed to pay the aforesaid amount to the complainant. Accordingly, the instant complaint case was filed for offences under Ss. 420 and 120-B of the Indian Penal Code and 138 of Negotiable Instrument Act. (hereinafter referred to as "N.I. Act"). 5. It has been submitted on behalf of the petitioners that the cognizance in the case has been taken mechanically without application of judicial mind in as much as no complaint case was maintainable by a lawyer claiming his fees and expenses incurred in conducting the case as the same was against the provisions of the Advocates Act. It has further been submitted that no offence u/s. 406 of the Indian Penal Code can be said to have been made out from the averments in the complaint petition and at best the allegations made therein would be a cause for civil action and a money suit lay for realization of fees. It is also submitted that the Revisional Court had wrongly dismissed the revision holding that order of cognizance can not be a subject matter of adjudication under revisional jurisdiction. 6. Admittedly as per the assertions in paragraph No.3 of the complaint petition, there was an agreement between the complainant and tne accused persons to the effect that the entire expenses of the claim case till its disposal would be borne out by the complainant and after disposal of the case the accused would pay a sum of Rs. 20,000.00 to the complainant. It would thus appear that if there had been any contract between the complainant and the accused regarding payment of the fees after completion of the case. 7. 20,000.00 to the complainant. It would thus appear that if there had been any contract between the complainant and the accused regarding payment of the fees after completion of the case. 7. In the case of State of Haryana V/s. Bhajan Lal, 1992 Supp1 SCC 335, the Apex Court in the backdrop of interpretation of the various provisions of the Code of Criminal Procedure and of the principles of law enunciated by the Apex Court in a series of decisions relating to exercise of extraordinary power under Art. 226 or inhereint power u/s. 482 of the Code of Criminal Procedure gave seven categories of cases by way of illustration, wherein such power could be exercised to prevent abuse of the process of the Court or otherwise to secure the ends of justice making it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised. It is also well settled by a catena of decisions of the Apex Court as also this Court that criminal cases in disputes of purely civil nature are not maintainable and is fit to be quashed. 8. Admittedly the agreement between the complainant and the accused would amount to a contract and any dispute arising out of contract would in all situation amount to civil wrong, for which filing of civil suit was the requirement. 9. That apart the core postulate of dishonour, the intention in order to deceive the complainant O.P. No.2, is not made out even accepting all the averments in the complaint on their face value. In such a situation, continuing the criminal proceeding against the petitioner, in my considered opinion would amount to an abuse of the process of the Court. Accordingly, in view of the discussions made above, the cognizance taken by order dated 21.1.2002 and the order dated 2.12.2004 passed in Criminal Revision No.13 of 2004/42 of 2004 can not be sustained in law and are hereby quashed. 10. In the result, the application is allowed.