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2012 DIGILAW 400 (UTT)

YOGENDRA KUMAR v. STATE OF UTTARAKHAND

2012-07-20

SERVESH KUMAR GUPTA

body2012
JUDGMENT Hon’ble Servesh Kumar Gupta , J. At the very outset, it would be relevant to mention that none turned up on behalf of the complainant Rajbeer (respondent no. 2) despite sufficient service upon him. On the previous two dates also, none was present on his behalf. However, counter affidavit has been filed on behalf of the complainant. Hence, this Court rendered hearing to Mr. S.K. Shandilya, learned Counsel for the applicants/petitioners and Mr. D.K. Sharma, learned Deputy Advocate General (Criminal), for the State. 2. Having heard on the controversy involved in the present petition, it appears that the complainant Rajbeer purchased some electronic items from the firms of applicants, namely, Yogender Kumar and Mahender Kumar, who are real brothers and run their separate firms at Haridwar. Complainant made the payment through cheques. Out of those cheques, few got dishonoured by the bank because of insufficient fund in the account of the drawer Rajbeer. So, Kumar Brothers launched the prosecution against Rajbeer under Section 138 of the Negotiable Instruments Act by filing the Complaint Case No. 1403/2007 and 1409/2007 respectively. Both these cases ultimately resulted into compromise before the court of Special Judicial Magistrate, Haridwar respectively on 22.12.2008 and 16.10.2007. 3. Subsequent to compromise in the aforesaid cases, Rajbeer lodged an FIR against Kumar Brothers on 28.2.2009 in the milieu and backdrop of purchasing the electronic items like washing machines, etc. He alleged that on 14.2.2009, when he complained that washing machines were not functioning properly and the defects could not be removed despite his repeated requests. On hearing this complaint of Rajbeer, Kumar Brothers allegedly lashed out over him. They hurled filthy abuses and also uttered caste indicating words and bate him with fists and kicks. He was rescued by the passersby. The applicants/petitioners left the spot with a threatening to kill him in future. 4. It has been argued by the learned Counsel for the applicants/petitioners that the investigation in the matter was made by an officer of the rank of Circle Officer, who found the allegations, made by the complainant, to be false and baseless. He, accordingly, filed the final report on 27.3.2009 with recommendation to initiate the proceedings under Section 182 CrPC against the complainant Rajbeer because he had set the law machinery in motion on the basis of false and fictitious allegations. 5. He, accordingly, filed the final report on 27.3.2009 with recommendation to initiate the proceedings under Section 182 CrPC against the complainant Rajbeer because he had set the law machinery in motion on the basis of false and fictitious allegations. 5. Learned Additional Chief Judicial Magistrate, Haridwar did not find it proper to take any action against the complainant under Section 182 CrPC. Rather, he rejected the final report and took cognizance vide order dated 1.6.2009 and summoned the applicants/petitioners to stand trial for the offences under Section 323, 504 and 506 IPC. 6. Having considered the entire facts and circumstances of the instant case, this much is very clear that the FIR lodged by Rajbeer was nothing but a counterblast to his grievance which he was nurturing against the applicants/petitioners on account of their alleged failure to pay any heed to his request of removing the defects from the washing machines, which he had purchased from their firms. Complainant also could not submit any medical report in support of his allegations of beating at the hands of the applicants/petitioners. 7. This Court feels that the complainant has abused the process of court. Learned Magistrate failed to figure out the true facts and passed the impugned order in a mechanical and routine way without assigning any logic/reason as to why he thought it fit to reject the recommendation of the Investigation Officer to take action against the complainant under Section 182 CrPC. In the circumstances, the impugned trial against the applicants/petitioners cannot be allowed to proceed any further. 8. Consequently, the petition is allowed. Impugned order of cognizance dated 1.6.2009 as well as the entire proceedings of Criminal Case No. 747/2009, Rajbeer v. Yogender Kumar & Anr., pending before the 1st Additional Chief Judicial Magistrate, Haridwar, are hereby quashed. Additional Chief Judicial Magistrate, Haridwar is directed to consider the recommendation of the Investigation Officer to initiate action against the complainant Rajbeer under Section 182 CrPC. 9. Inform the court concerned accordingly.