Research › Search › Judgment

Uttarakhand High Court · body

2011 DIGILAW 721 (UTT)

PREM KUMAR v. STATE OF UTTARAKHAND

2011-12-13

SERVESH KUMAR GUPTA

body2011
JUDGMENT Hon'ble Servesh Kumar Gupta, J. 1. By means of this petition, moved under Section 482 Cr.P.C., a prayer has been advanced to quash the Criminal Case No. 95 of 1997, Raj Kumar Vs. Sanjay Kumar and others, wherein all the applicants have been summoned to stand trial for the offences punishable under Sections 420, 467, 471, 506 I.P.C., pertaining to Police Station Gadarpur, District Udham Singh Nagar. 2. Having heard the pros and cons of the controversy, it transpires that Sri Raj Kumar, private opposite party no. 2, sold some quantity of rice to Sri Sanjay Kumar (applicant no. 2) in consideration whereof a cheque no. 748150, worth Rs. 1,00,000/- drawn at Bank of Baroda was issued to Sri Raj Kumar. The date of the cheque was stated to be 25.12.1996 in complaint no. 235 of 1997, while in the first information report dated 7th May, 1997, while in the first information report dated 7th May, 1997 lodged by Sri Raj Kumar against the applicants, the same has been stated to be issued on 25.12.1995. This cheque when presented by Sri Raj Kumar through his banker, was dishonoured on 22.01.1997. So, a notice, as required under Section 138(b) of Negotiable Instruments Act was issued on 11th February, 1997 asking Sri Sanjay Kumar to make the payment. That could not yield any result. So, Sri Raj Kumar filed a complaint case no. 235 of 1997 against Sri Sanjay Kumar only for the offence of Section 139 of Negotiable Instruments Act (hereinafter called as 'the Act'). The Magistrate, after going through the statement of the complainant and the requisite papers annexed therewith, took cognizance in the matter on 15.04.1998 and, in order to ensure the presence of accused Sri Sanjay Kumar, issued arrest warrant on 17.11.1998. Against this order, a revision, bearing no. 3 of 1999, was filed in the Court of Sessions Judge, Udham Singh Nagar, which was allowed rejecting the order of the learned magistrate dated 17.11.1998. The learned Additional Sessions Judge, in the same continuity, dismissed the complaint being time barred and the order of cognizance dated 15.04.1998 as well. The file was directed to be consigned to the record room. 3. The complainant Sri Raj Kumar was disgruntled because the prosecution launched by him, under Section 138 of the Act, had been done away with. The learned Additional Sessions Judge, in the same continuity, dismissed the complaint being time barred and the order of cognizance dated 15.04.1998 as well. The file was directed to be consigned to the record room. 3. The complainant Sri Raj Kumar was disgruntled because the prosecution launched by him, under Section 138 of the Act, had been done away with. So, he commenced another round of litigation by way of lodging F.I.R. dated 7th May, 1997, not only against Sri Sanjay Kumar but also two other companions of Sri Sanjay Kumar, namely, Prem Kumar and Sudesh Kumar for the offence punishable under Sections 420, 467, 471 and 506 I.P.C. The background of this F.I.R. was the same i.e. issuance of cheque, dishonor of the same by the banker. It was added that Sri Raj Kumar, when asked about the wherewithal of the dishonoured cheque from Sri Sanjay Kumar, all the three applicants intimidated him and extended threat to kill him by their revolver. The matter was investigated and a final report was submitted by the Investigating Officer to the Magistrate. The Magistrate concerned perused the file sent by the Investigating Officer and passed the order in the following words : It is evident that Investigating Officer has sent the final report on the ground that a complaint case has been lodged u/s 138 Negotiable Instrument Act against the accused. This is a baseless & illegal ground for submitting a final report in such a serious matter u/s 420, 467, 471 and 506 I.P.C. Final report is therefore rejected. Cognizance is taken against Sanjay Kumar, Prem Kumar and Sudesh Kumar. Issue N.B.W. against all three accused. Issue B.W. 2000 surety against informant fixing 1.9.2000. 4. Against this order of cognizance and issuance of N.B.W. against the applicants, a revision bearing no. 9 of 2004, titled as Sanjay Kumar and others Vs. State of Uttaranchal through Collector, Udham Singh Nagar, was preferred in the Court of Sessions Judge, Udham Singh Nagar. That revision was adjudicated on 13th April, 2007 in the absence of revisionist. It is pertinent to mention that the revisionist did not appear to press that revision, while the learned counsel for the respondent was present. State of Uttaranchal through Collector, Udham Singh Nagar, was preferred in the Court of Sessions Judge, Udham Singh Nagar. That revision was adjudicated on 13th April, 2007 in the absence of revisionist. It is pertinent to mention that the revisionist did not appear to press that revision, while the learned counsel for the respondent was present. So, the revision was decided on merits and the learned Additional Sessions Judge was of the view that the impugned order of cognizance dated 04.08.2000 has been passed by the learned Magistrate prima facie on the basis of evidence. He did not find any illegality or irregularity or incongruity in the order. So, the order of cognizance was sustained. 5. The applicants feeling dissatisfied have come up before this Court, invoking the inherent powers of this Court under Section 482 Cr.P.C. 6. At the outset, this petition has been objected by the learned counsel for the private respondent on the ground that it is a second revision in the garb of petition under Section 482 Cr.P.C. and that is absolutely barred as envisaged under Section 397(3) Cr.P.C. 7. Fortiori, filing this petition without challenging the order passed in revision no. 9 of 2004 on merits is all the more an attempt to circumvent the provisions of Section 397(3) Cr.P.C. 8. The learned counsel for the applicants has relied upon a precedent of Hon'ble Apex Court rendered in the case of Ganesh Narayan Hegde Vs. S. Bangarappa and others reported in 1995 Supreme Court Cases (Cri) 634 wherein the Hon'ble Apex Court has held that dismissal of revision by Sessions Judge does not bar the High Court from exercising its inherent powers. However, the High Court should not act as a second revisional court, nor can it enter into merits of the case and pronounce upon the truth and correctness of the complaint or defence. It can interfere only to prevent abuse of process of court or otherwise to secure ends of justice. Elaborating the above ratio, the Hon'ble Apex Court has placed reliance upon its earlier decision rendered in the case of Dhanalakshmi Vs. R. Prasanna Kumar, reported in 1990 Supp SCC 686; 1991 SCC (Cri) 142. It can interfere only to prevent abuse of process of court or otherwise to secure ends of justice. Elaborating the above ratio, the Hon'ble Apex Court has placed reliance upon its earlier decision rendered in the case of Dhanalakshmi Vs. R. Prasanna Kumar, reported in 1990 Supp SCC 686; 1991 SCC (Cri) 142. In the case of Dhanalakshmi (supra), the Hon'ble Apex Court held that while it is true that availing of the remedy of the revision to the Sessions Judge under Section 399 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a Second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of court or that the interests of justice otherwise call for quashing of the charges. 9. Another precedent relied by learned counsel for the applicants is in the case of Krishnan and another vs. Krishnaveni and another, reported in 1997 Supreme Court Cases (Cri) 544 wherein the ratio laid down by the Hon'ble Apex Court is that ordinarily, when revision has been barred by Section 397(3) of the Code, a person-accused/complainant-cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. The High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. 10. As regards the abuse of the process of law, it would be relevant to quote an oflate precedent of Hon'ble Apex Court, rendered in the case of Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao and another reported in 2011 CRI. L.J. 1094 (Supreme Court), where, it has been categorically held that in view of Section 300(1) Cr.P.C., no one can be tried and convicted for the same offence or even for a different offence but on the same facts. In the instant case, the complaint filed under Section 138 of the Act was dismissed on merits being time barred under the observation by the learned Sessions Judge in Revision No. 3 of 1999. So, with the same facts, another round of litigation by lodging F.I.R. under Sections 420, 467, 471, 506 I.P.C. could not have been permitted, as it would amount to initiation of the second litigation on the same facts. 11. The argument advanced on behalf of the private respondent that without challenging the order of revision passed by the learned Additional Sessions Judge dated 13.04.2007, the order of the learned Magistrate, taking cognizance in the matter dated 04.08.2000, could not have been challenged, also has no substance. It is simply a technical ground. Although it was in the fitness of things to challenge the order of the revision dated 13.04.2007 along with the order of cognizance passed by the learned Magistrate dated 04.08.2000. In any case, if it has not been done so by the applicants, even then this petition cannot be defeated solely on that ground. 12. A glance on the impugned order of cognizance dated 04.08.2000, passed by the learned Judicial Magistrate, Rudrapur, makes it amply clear that neither any protest petition was moved by Sri Raj Kumar against the submission of the final report nor any complaint was instituted by Sri Raj Kumar and even the judicial Magistrate has not mentioned a single ground as to how he could satisfy himself regarding the availability of the evidence collected by the Investigating Officer in the case diary. The order apparently is quite cryptic and whimsical, without any substance and it is quite appalling that the learned Additional Sessions Judge, while adjudicating the revision no. 09 of 2004, has found that the order of the Magistrate is prima facie based on the evidence, while there is no evidence at all. It appears that the learned Additional Sessions Judge has also disposed of this revision in a very mundane and cyclostyled fashion without narrating even a single ground as to how he could satisfy himself about the availability of evidence in the case diary even prima facie. 13. Karnataka High Court, while adjudicating the case titled as Smt. Hemalatha Ramesh Vs. H.N. Muddu Krishna, reported in 1999 CRI. L.J. 1117, has opined that if the order of cognizance passed by the Magistrate was challenged in the revision and the same was dismissed, the petition under Section 482 Cr.P.C. would still be maintainable irrespective of the fact that only the order of cognizance was challenged and the order passed in the revision dismissing the order of cognizance was not. 14. So, in the panoptic view, as explicated above, this petition deserves to be allowed and the same is, accordingly, allowed. The impugned order of cognizance dated 04.08.2000, passed in Criminal Case No. 95 of 1997, Raj Kumar Vs. Sanjay Kumar and others, under Sections 420, 467, 471, 506 I.P.C., pending in the Court of Judicial Magistrate, Udham Singh Nagar, is hereby quashed.