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2013 DIGILAW 1014 (RAJ)

Prakash Singh Kachhawaha v. Ramesh Solanki

2013-05-16

VIJAY BISHNOI

body2013
JUDGMENT 1. - This criminal misc. petition under Section 482 Cr.P.C. has been preferred on behalf of the petitioner with a prayer to quash the proceedings qua the petitioner in Criminal Original Case No.352/2001 pending before the Additional Chief Judicial Magistrate, Pali. 2. Brief facts of the case are that the respondent-complainant Ramesh Solanki filed a complaint against the petitioner and his son on 5.3.2001 in the court of Additional Chief Judicial Magistrate (Environment), Pali under Section 138 of the Negotiable Instrument Act while alleging that the petitioner and his son Naresh Singh used to book rooms in his hotel Happy Home situated at Bus Stand Pali but did not make full payment, however, on asking of the petitioner his son Naresh Singh delivered a cheque on 4.1.2000 of Rs. 50,000/- as part payment bearing date of encashment as 1.4.2000. Later on Naresh Singh changed the date of encashment of cheque from 1.4.2000 to 14.7.2000. The cheque was signed by Naresh Singh being the Proprietor of S.L.C. Shiva Consolidated Company. After 14.7.2000 when the petitioner and and his son did not make the payment, then the respondent-complainant approached them and then Naresh Singh assured him that the cheque given by him will be honoured in the month of December 2000. 3. On the assurance given by the Naresh Singh, the complainant presented the cheque in the Bank on 30.12.2000 but the same was dishonoured on account of insufficient fund in the account. On receiving the said information, the respondent gave a notice to the petitioner and his son and asked for payment of Rs. 50,000/- within 15 days from the receipt of said notice. The petitioner and his son received that notice on 20.1.2001 but despite that the payment was not made. On 5.3.2001, respondent-complainant preferred the complaint under Section 138 Negotiable Instrument Act against the petitioner and his son. The learned Magistrate after recording evidence under Section 200 and 202 Cr.P.C. took cognizance against the petitioner and his son for offence punishable under Section 138 Negotiable Instrument Act and ordered for issuance of summons to the petitioner and his son. In response to the summons, the petitioner and his son appeared before the learned Magistrate. On 5.1.2004, the learned Magistrate stated that substance of accusation to the petitioner and his son. Now the petitioner has filed this criminal misc. In response to the summons, the petitioner and his son appeared before the learned Magistrate. On 5.1.2004, the learned Magistrate stated that substance of accusation to the petitioner and his son. Now the petitioner has filed this criminal misc. petition praying for quashing the proceedings against him in Criminal Original Case No.352/2001 pending before the Additional Chief Judicial Magistrate, Pali. 4. The learned counsel for the petitioner has submitted that in the present case it is an admitted fact that the petitioner had never issued any cheque in favour of the complainant and the cheque in question dated 4.1.2000 was issued by Naresh Singh as Proprietor of S.L.C. Shiva Consolidated Company to which the petitioner has nothing to do. It is further stated by the learned counsel for the petitioner that the petitioner was falsely implicated by the respondent with intention to build pressure on his son Naresh Singh, who had issued the cheque in question. It is also argued by the learned counsel for the petitioner that in connection with the complaint filed by the respondent-complainant under Section 138 of Negotiable Instrument Act, the trial against son of petitioner, Naresh Singh has resulted in conviction of Naresh Singh, therefore, also the criminal proceedings against the petitioner are liable to be quashed and continuance of the criminal proceedings against the petitioner, particularly in view of the fact that he had not issued the cheque in question, clearly amounts to abuse of process of law. 5. The learned counsel for the petitioner has placed reliance upon the judgment of Hon'ble Supreme Court rendered in Dhariwal Tobacco Product Ltd. and others v. State of Maharashtra and others, (2009) 1 SCC (Cri) 806 , and prayed for quashing proceedings against the petitioner by this Court in exercise of powers under Section 482 Cr.P.C. 6. Per contra, learned counsel for the respondent-complainant has raised preliminary objections about the maintainability of the present criminal misc. petition while claiming that the petitioner has no right to challenge the order dated 5.1.2004 whereby the substance of accusation was stated to the petitioner while invoking powers under Section 482 Cr.P.C. as the petitioner was having an alternate remedy to file a revision petition under Section 397 Cr.P.C. before the Revisional Court. petition while claiming that the petitioner has no right to challenge the order dated 5.1.2004 whereby the substance of accusation was stated to the petitioner while invoking powers under Section 482 Cr.P.C. as the petitioner was having an alternate remedy to file a revision petition under Section 397 Cr.P.C. before the Revisional Court. It is also contended by the learned counsel for the petitioner that the learned Magistrate took cognizance against the petitioner for the offence under Section 138 of the Negotiable Instrument Act on 6.8.2001 and thereafter framed the charges against the petitioner vide order dated 5.1.2004 and both the orders are revisable under Section 397 Cr.P.C. but the petitioner has appeared before the learned Magistrate in pursuance of the summons issued to him and had not challenged the order of taking cognizance dated 9.8.2001 and had also not challenged the order of framing charge dated 5.1.2004 by way of revision and since the limitation for filing revision petition has already been expired now this criminal misc. petition filed by the petitioner for quashing the proceedings against him in Criminal Original Case No.352/2001 pending before Additional Chief Judicial Magistrate, Pali is not maintainable and is liable to be rejected. 7. Learned counsel for the respondents has placed reliance upon the judgment rendered by this Court in S.B. Criminal Misc. Petition No.253/2006 (Bhanwar Lal v. State of Rajasthan & anr.) decided on 24.3.2006 and judgment of Hon'ble Apex Court rendered in Subramanium Sethuraman v. State of Maharashtra decided on 17.9.2004 reported in [2005] 0 SCC (Cri) 242 . 8. Heard the arguments advanced by counsel for the parties and perused the material placed on record on behalf of the parties. 9. The Hon'ble Apex Court in Dhariwal Tabacco Product Ltd. (supra) while considering the question whether the petition under Section 482 Cr.P.C. 1973 can be dismissed only on the premise that an alternate remedy of filing a revision petition under Section 397 of the Code of Criminal Procedure is available, has held as under:- "6. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R.P. Kapur v. State of Punjab to Som Mittal v. Govt. of Karnataka , has laid down the criterion for entertaining an application under Section 482. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R.P. Kapur v. State of Punjab to Som Mittal v. Govt. of Karnataka , has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure , 1908 this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Rai and others . Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Sessions is barred under Section 397 (2) of the Code, the inherent power of the Court has been held to be available. 7. The power of the High Court can be exercised not only in terms of Section 482 of the Code but also in terms of Section 483 thereof. The said provision reads thus:- "483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates:- Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates." Inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of." 10. The Hon'ble Apex Court in Subramanium Sethuraman's case (supra) has also held that Magistrate cannot review the order itself and the order of issue of process can be challenged by filing petition under Section 482 Cr.P.C. 11. This Court is of the opinion that in view of the law laid down by the Hon'ble Supreme Court in Dhariwal Tabacco Product Ltd. (supra) and Subramanium Sethuraman's case (supra) and in the facts and circumstances of this case, the objections raised by the learned counsel for the respondents regarding the maintainability of this misc. This Court is of the opinion that in view of the law laid down by the Hon'ble Supreme Court in Dhariwal Tabacco Product Ltd. (supra) and Subramanium Sethuraman's case (supra) and in the facts and circumstances of this case, the objections raised by the learned counsel for the respondents regarding the maintainability of this misc. petition are rejected. 12. Now this Court has to examine whether sufficient material is available on record to proceed against the petitioner to prosecute him to hold guilty for the offence punishable under Section 138 of the Negotiable Instrument Act. 13. From perusal of the complaint as well as the statement of complainant recorded under Section 200 Cr.P.C. (copies of which were made available by the learned counsel for the petitioner), it is clear that in the complaint as well as in the statement, the respondent-complainant has clearly come out with a case that the cheque in question of Rs. 50,000/- dated 1.4.2000 was given by the accused Naresh Singh. The accused Naresh Singh had put his signature on the said cheque being Proprietor of S.L.C. Shiva Consolidated Company. The date on the check was also changed by accused Naresh Singh from 1.4.2000 to 14.7.2000 while again putting his signatures. It is also stated by the respondent-complainant in his complaint that on 4.1.2000, the accused Naresh Singh approached him and asked him not to present the cheque in the Bank for payment and it was the accused Naresh Singh, who assured him to make the cash payment of the amount mentioned in the cheque. It is also stated in the complaint as well as in the statement that the respondent-complainant has ultimately presented the cheque on 30.12.2000 on asking of accused Naresh Singh. In the complaint as well as in the statement, it was nowhere stated by the respondent-complainant that the petitioner was a partner or director in the S.L.C. Shiva Consolidated Company or in any manner was responsible for day-to-day functioning of the said Company. It is not in dispute that the cheque was issued by accused Naresh Singh as being the proprietor of S.L.C. Shiva Consolidated Company. No details regarding the booking of rooms by the petitioner has been given either in the complaint or in the statement of the respondent- complainant. It is not in dispute that the cheque was issued by accused Naresh Singh as being the proprietor of S.L.C. Shiva Consolidated Company. No details regarding the booking of rooms by the petitioner has been given either in the complaint or in the statement of the respondent- complainant. In such circumstances, it is difficult to hold that the cheque issued by the accused Naresh Singh being the proprietor of S.L.C. Shiva Consolidated Company was in lieu of hotel rooms booked on behalf of the petitioner. 14. This Court is of the opinion that in above facts and circumstances, continuance of proceedings against the petitioner committing offence under Section 138 of Negotiable Instrument Act is nothing short of abuse of process of law. 15. The information supplied by the petitioner to the effect that the trial against accused Naresh Singh has already been completed and he has been found guilty of committing offence under Section 138 of Negotiable Instrument Act by the trial court and was sentenced accordingly, has not been disputed by the counsel for the respondent. 16. In view of discussions made above and in view of the fact that the accused Naresh Singh has been found guilty under Section 138 of Negotiable Instrument Act and was sentenced accordingly by the learned Magistrate in Criminal Original Case No.352/2001, the order dated 5.1.2004 framing charges for offence punishable under Section 138 of Negotiable Instrument Act is hereby quashed qua the petitioner. The criminal misc. petition filed by the petitioner Prakash Singh succeeds and the proceedings qua the petitioner in Criminal Original Case No.352/2001 pending in the Court of learned Additional Chief Judicial Magistrate, Pali are also hereby quashed.Petition allowed. *******