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2010 DIGILAW 665 (UTT)

Pooja Sharma v. State of Uttaranchal

2010-09-09

SUDHANSHU DHULIA

body2010
judgment Hon’ble Sudhanshu Dhulia, J(Oral) Heard Mr. Ramji Srivastava, Advocate for the applicants, Mr. Nandan Arya, AGA for the State of Uttarakhand and Mr. Manish Arora, Advocate for respondent no. 2. 2. This criminal misc. application under Section 482 of Cr.P.C. has been filed by the applicants (who happened to be husband and wife) against the summoning order dated 10.05.2005 passed by the Judicial Magistrate, Roorkee, District Haridwar on a complaint filed under Sections 420 and 406 of I.P.C. by respondent no.2. 3. The brief facts of the case are that respondent no.2 had drawn a cheque bearing no. 028565 dated 15.10.2004 in favour of M/s Jagdamba Traders which is being run by applicant no.1 who is wife of applicant no.2. This cheque was presented to the Bank and it was subsequently dishonoured on 9.3.2005 due to “insufficient funds”. Subsequently, a notice was sent to respondent no.2 on 24.3.2005 which according to the applicants was served on respondent no. 2 on 27.3.2005. Since the money was not paid, on 11.5.2005 a complaint was filed against respondent no.2 under Section 138 of the Negotiable Instruments Act, 1881 (from hereinafter referred to as the “Act”) in which summons were issued against respondent no. 2. Consequently, respondent no. 2 filed an application under Section 482 of Cr.P.C. before this Court bearing No. 522 of 2006 in which interim order was given in favour of respondent no. 2 (applicant in C-482 No. 522 of 2006), though on 29.7.2010 the application along with the interim order was dismissed for non-prosecution. In short the initiation of the present applicants the proceeding was initiated against respondent no. 2 under Section 138 of the Act. The proceeding so initiated has already been referred above. 4. Respondent no. 2, on the other hand, filed a complaint against the present applicants before the Judicial Magistrate, Roorkee, District Haridwar under Sections 420 and 406 of IPC. Curiously it has not been stated in the complaint that respondent no. 2 has already received notices under Section 138 of the Act by the applicants. The court below after taking recourse under Section 200 read with 202 of Cr.P.C. issued summons to the present applicants. Curiously it has not been stated in the complaint that respondent no. 2 has already received notices under Section 138 of the Act by the applicants. The court below after taking recourse under Section 200 read with 202 of Cr.P.C. issued summons to the present applicants. The present applicants, however, state before this Court that the entire proceedings under Section 420/406 I.P.C so initiated against them are nothing but an abuse of the process of the Court, as they have been initiated in order to preempt the process already initiated by the applicants under Section 138 of the Act inasmuch as the notices under Section 138 (c) were given to respondent way-back in time. On these set of facts, prima facie it is the considered opinion of this Court that the Criminal Court Machinery initiated at the hands of respondent no. 2 would amount to an abuse of the process of the Court, as it was done in order to preempt the action already taken by the applicants against respondent no. 2 under Section 138 of the Act. Moreover, the fact that a notice has already been given to respondent no. 2 by the present applicants under Section 138 of the Act has not been stated in the complaint filed by him. As such, this fact was also not in the knowledge of the court below before such summons were issued to the applicants. Initiation of proceeding under Section 138 of the Act and the counter blast in a proceeding under Section 420/406 I.P.C. and other allied proceeding is now becoming a common place. Therefore, in the interest of justice, it is directed that the proceedings initiated against the present applicants are set aside. Impugned summoning orders dated 10.5.2005 issued by the Judicial Magistrate, Roorkee, district Haridwar against the present applicants are quashed. However, it is made clear that if any occasion arises, depending upon the result of the proceeding initiated against respondent no. 2, respondent no. 2 shall be free to initiate criminal proceeding against the present applicants. 5. With these observations, the present C-482 application is allowed. No order as to costs. 6. Registry is directed to send a copy of this order to the court concerned for necessary compliance.