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2011 DIGILAW 1860 (ALL)

Maan Singh v. State of U. P. and Another

2011-08-03

NAHEED ARA MOONIS

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Hon’ble Naheed Ara Moonis, J. : Heard the learned counsel for the applicant, learned A.G.A. and perused the record.2. The instant petition has been filed for quashing the entire proceedings of Criminal Case No. 114 of 1993 (Shiv Shanker Sinha Vs. Maan Singh) under Section 138 Negotiable Instrument Act whereby the summoning order was passed on 25.10.1993 by the Additional First Munsif Magistrate, Ghazipur and further prayed to set aside the order dated 31.5.2011 passed by the Special Judge E.C. Act, Ghazipur in Criminal Misc. Application No. 26 of 2008 (Maan Singh Vs. State of U.P. and others), police station Kotwali, district Ghazipur whereby the application of the applicant to condone the delay in filing the revision was rejected and the record of the case was directed to be returned to the trial court.3. The factual matrix of the case is that the opposite party no.2 filed a complaint against the applicant on 4.8.1993 that his wife is a Partner of M/s. Siddharth Enterprises Tikhampur, Kalpana Colony, Ballia who had entered into a contract with Roop Fuel Organization of which the applicant was the proprietor/sole stockist at Pilikothi, Koelaghat, Ghazipur. In respect of the goods supplied by the complainant the applicant had given a cross cheque of United Commercial Bank, Bhelupur, Varanasi of Rs. 2,000/- in favour of Smt. Meena Sinha who is the wife of the complainant, which was deposited by the complainant at Bank of Baroda Branch Ghazipur. The said cheque could not be encashed due to non payment. In this regard the complainant had given information several times to the applicant but the money was not paid by him, therefore, it was prayed that a case be registered under Section 138 Negotiable Instrument Act and under Sections 419 and 420 of Indian penal Code as the applicant had committed fraud by taking goods worth to Rs. 10,000/- and the money has not been refunded back. On the basis of the said application a criminal case was registered as case No. 114 of 1993 (Shiv Shanker Sinha Vs. Maan Singh). The statement of the complainant under Section 200 Cr.P.C. recorded on 4.8.1993 and the statements of Rajendra Kumar and Laxmi Kant Pandey were recorded under Sections 202 Criminal Procedure Code on 11.8.1993 who had supported the complaint case. The notices sent to the applicant, Photocopy of the cheque of Rs. Maan Singh). The statement of the complainant under Section 200 Cr.P.C. recorded on 4.8.1993 and the statements of Rajendra Kumar and Laxmi Kant Pandey were recorded under Sections 202 Criminal Procedure Code on 11.8.1993 who had supported the complaint case. The notices sent to the applicant, Photocopy of the cheque of Rs. 2,000/- and the bank report and photo copy of the agreement were filed before the court below in support of the complaint. The court below found that prima facie offence is made out under Section 138 Negotiable Instrument Act and as such the summoning order was passed against him by the impugned order dated 25.10.1993. The aforesaid order was challenged by the applicant by filing a criminal revision before the court of Sessions Judge, Ghazipur on 4.4.2008 along with delay condonation application and affidavit. In the aforesaid revision the aforesaid delay condonation application was registered as Misc. Case No.26 of 2008 and a notice was issued to the respondent fixing 14.5.2008 for disposal by inviting objections. On 31.5.2011 the Misc. Case was dismissed for non-prosecution and the record of the trial court was returned back.4. It is contended by the learned counsel for the applicant that the orders passed on 25.10.1993 and 31.5.2011 suffer from manifest error. The opposite party no.2 who had filed the complaint in respect of the dishonour of cheque alleged to have been issued by the applicant in favour of his wife Smt. Meena Sinha is against the mandate of Section 142 of Negotiable Instruments Act and therefore the opposite party no. 2 was not authorized to file any complaint under Section 138 Negotiable Instruments Act. From the contents of the complaint there was no contract in existence on the alleged date of occurrence between the applicant and the wife of the complainant and without giving any valid notice to the applicant the complaint was filed, which is also against the mandatory provision as envisaged under Section 138 Negotiable Instruments Act. The cross cheque was in the name of Smt. Meena Sinha payable at United Commercial Bank, Branch Bhelupur, Varanasi, which was dishonoured by the bank situated in district Varanasi and as such complaint was not maintainable at district Ghazipur, therefore, the order passed by the Chief Judicial Magistrate, Ghazipur is without jurisdiction, hence the cognizance taken by the court below is unwarranted.5. It is further contended by the learned counsel for the applicant that the applicant had no knowledge about the summoning order passed against him prior to 2.3.2008 when he came to know about the order through his son. He was not having good health and was ailing with high blood pressure and heart ailment and from the date of knowledge on 2.3.2008 within 33 days he filed revision along with Section 5 application for condoning delay in filing the revision before the revisional court on 4.4.2008. The notice was issued to the respondent by the revisional court fixing 24.5.2008 for disposal and the objection was invited and the case remained pending. No objection was filed by the opposite party no. 2 and on 31.5.2011 the aforesaid Misc. Application was dismissed on account of non-appearance and it was directed to return the record to the trial court. With the dismissal of the revision the applicant has been seriously prejudiced as question of law was raised by filing the revision. The revisional court could not have dismissed the revision without deciding the case on merit. In this regard the learned counsel placed reliance upon the decision of the Apex Court in Madan Lal Kapoor Vs. Rajiv Thapar and others, 2007 (3) SCC (Crl.) 437 and has contended that the Apex court had set aside the order of the High Court and has held that the dismissal of criminal revision in default or non-prosecution without going into the merits of the case is not permissible. The Apex Court had remanded the case to the High Court to decide the matter within time bound framework. The Apex Court had categorically held that a criminal revision cannot be dismissed in default.6. Per contra learned A.G.A. has contended that the revision preferred by the applicant was time barred which was filed after a lapse of 15 years and the cause shown for delay in filing the revision is neither cogent nor plausible even he has not filed any medical report with regard to his ailment with which he was suffering from the date of knowledge of the summoning order passed against him. The revisional court had passed the order dismissing the revision in default on account of prolong absence of the applicant and the record of the court below was returned back therefore there is no illegality in the order passed by the revisional court. The revisional court had passed the order dismissing the revision in default on account of prolong absence of the applicant and the record of the court below was returned back therefore there is no illegality in the order passed by the revisional court. The summoning order was passed in 1993 against the applicant. The applicant has not appeared before the trial court and instead of filed the present 482 petition to further prolong the case pending against him.7. The applicant while filing the revision before the revisional court had not sufficiently explained the delay in filing the revision where if the delay is of a few days or months, the court can take a lenient view to condone the delay so that the right of the party may not be prejudiced but in the instant case after 15 years of passing of the summing order the revision was preferred by the applicant and without giving any cogent explanation of the long absence of the applicant it does not at all show the bona fide of the applicant for not filing revision within time. It only shows that he had tried to make all possible efforts to evade proceeding of the court below. In the garb that the criminal revision of the accused/applicant had not been heard on merits by the revisional court the learned counsel has cited the aforesaid decision of the Apex Court and is now trying to prolong the proceedings. This is nothing but an abuse of the process of the court. The accused/appellant came to know about the summoning order after 15 yeas but he has not brought on the record about the subsequent proceedings initiated against him after passing of the summoning order.8. I have considered the submissions of the learned counsel for the parties and without averting to the merits of the case the order passed by the revisional court dismissing the delay condonation application in default of appearance of counsel does not suffer from any illegality. The revision was preferred after inordinate delay and it cannot be said that it is contrary to the dictum of the apex court relied upon by the applicant’s counsel. The revision was preferred after inordinate delay and it cannot be said that it is contrary to the dictum of the apex court relied upon by the applicant’s counsel. In that case the criminal revision does not appear to be time barred and it was regular revision, which was pending before the High Court since 2000 and was dismissed in default for non-prosecution and in that view of the matter the apex court allowed the appeal preferred by the appellant and had set aside the order of the High Court and had observed that the matter should be decided by the High Court after application of mind and by passing a reasoned order and therefore the appeal was allowed and the order of the High Court was set aside and remitted back to the High Court to decide the matter on merits. While in the present case against the summoning order dated 25.10.1993 the applicant preferred a time barred revision after 15 years on 4.4.2008 along with Section 5 application for condoning the delay and laches in filing the revision. The learned court below had passed the following order;”Heard.Register as Misc. Case.Issue notice to respondents by both ways. Steps be taken within seven days. Fix for hearing on 24.5.2008 for disposal. Objection is invited.9. This order itself shows that the notice was issued to the respondents on Section 5 application, which was registered as Misc. Case No. 26 of 2008. The case was not restored till 31.5.2011 when the order was passed, that the case called out none had appeared, Misc. Criminal Case No. 26 of 2008 is hereby rejected and the record of the trial court is directed to be returned back. Therefore, when the revision itself was neither admitted nor the delay condonation application was allowed, therefore, it cannot be said that the trial court ought to have heard the applicant on merits of the case. Hence the revisional court has rightly remanded the case to the court below. The applicant had raised several objections with regard to the maintainability of the complaint. The disputed question of fact cannot be adjudicated by this court under Section 482 Cr.P.C. at this stage only prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapoor Vs. State of Punjab A.I.R. 1960 SC 866; State of Haryana Vs. The disputed question of fact cannot be adjudicated by this court under Section 482 Cr.P.C. at this stage only prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapoor Vs. State of Punjab A.I.R. 1960 SC 866; State of Haryana Vs. Bhajan Lal 1992 SCC (Cr.) 426.10. The merits of the case would be looked into during trial. It has been held in S.W. Palanitkar and others Vs. State of Bihar and another, 2002 (44) ACC 168 that the quashing of the criminal proceedings is an exception than a rule. The Hon’ble apex court had settled the legal position for quashing prosecution at initial stage the court has to see whether the allegations levelled has made out a prima facie offence and the chances of conviction is bleak and no useful purpose is likely to be served by allowing the criminal prosecution to continue. In the instant case from bare perusal of the complaint it cannot be said that no offence is made against the applicant. The disputed defence of the accused/applicant cannot be considered at this stage. The impugned orders do not suffer from any illegality hence call for no interference.11. However, in case the applicant appears before the court concerned within 30 days from the date of receipt of the order and applies for bail, the same shall be heard and disposed of by the court concerned, if possible on the same day in view of the law laid down in Smt. Amrawati ad another Vs. State of U.P. 2005 Cr.L.J. 755, which has also been approved by the Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). The trial court is directed to decide the case as early as possible preferably within a period of four months after giving due opportunity of hearing to both the parties in accordance with law as the matter is quite old.12. With these observations the petition is dismissed._______