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2013 DIGILAW 1148 (ALL)

Bhajan Singh v. State of U. P.

2013-04-16

MUSHAFFEY AHMAD

body2013
JUDGMENT Hon’ble Mushaffey Ahmad, J. : Heard Sri Sushil Shukla, learned counsel for the revisionist and learned A.G.A. for the State. 2. Under challenge is the order dated 8.12.2004 whereby the learned Magistrate summoned the revisionist for offences under Sections 420,452,323,504 and 506 I.P.C. on the protest petition filed by the informant against the final report submitted by the investigating officer. The prosecution case is that the informant published an advertisement in which he offered help to the borrowers of loan from banks on certain conditions. The accused approached the informant and entered into an agreement on 15.9.2003. In furtherance of the agreement, the accused advanced two cheques, one of Rs. 1 lakh and the other of Rs. 1,77,000/-. The cheques were dishonored . The informant then lodged a first information report dated 15.5.2004 alleging therein that the accused entered into two agreements on 1.11.2003 and 12.1.2004 in respect of the loan of Rs. 10 lakhs. The accused knew that there was no sufficient amount in the bank account of the accused, still the accused issued a cheque in order to cheat the informant. The accused was contacted on telephone whereon? the accused Bhajan Singh alongwith his son Gurubhag Singh came to the informant’s house with naked sward and called the informant to come out ; the informant took fright and did not come out whereon both father and son entered the house and belabored the complainant; the witnesses were attracted to intervene and save the informant; the accused left threatening. The police investigated the case and pressed the final report finding not sufficient evidence for filing charge-sheet. It is pointed out that the investigating officer took into consideration the complaint filed by the informant for offence? under Sections 138 and 142 of Negotiable Instruments Act.When the final report was pressed by the police in the State Case, the informant filed protest petition alongwith copies of the affidavits and some other documents. The learned magistrate? considered the police report and the protest petition and also the affidavits filed alongwith the protest petition and passed the order impugned summoning the accused under Sections 420,452,323,504 and 506 (2) I.P.C. It may be pointed out that in the complaint case filed by the informant under sections 138 and 142 of Negotiable Instruments Act, the Magistrate summoned the accused for offences under Section 420 I.P.C. and Sec. 138 of the Negotiable Instruments Act. Learned counsel for the revisionist argues that the offence under Section 420 I.P.C. has been taken cognizance of in the State case as well as in the complaint case. The State case, therefore, would be an abuse of the process of law and, therefore, the order summoning the accused in the State case be set aside. 3. The State case was instituted for offences under Sections 420,452,323,504 and 506 (2) I.P.C. If the entire order for summoning the accused to face the trial for offences under Sections 420,452,323,504 and 506 (2) I.P.C. is set aside, the informant shall not have remedy for the offences not cognizable under the inevitable complaint filed and, therefore, the order taking cognizance and summoning the accused? in the State case cannot be set aside. However, the trial of the accused? in the complaint case as well as in the State case? cannot be repeated for offence under Section 420 I.P.C. because? the offence under Section 420 I.P.C. has been attached to the offence under Section 138? Negotiable Instruments Act. 4. As regards the contention of the learned counsel that the Magistrate committed illegality ? by taking into consideration? the extraneous material filed with the protest petition, the informant has mentioned in the protest petition that the investigating officer did not record the statement of witnesses? correctly and therefore, he sent the affidavits of the witnesses to the Senior Superintendent of Police for proper consideration. As the learned? counsel contends that those affidavits cannot be treated as statement under Section 161 Cr.P.C, but they can be the documents submitted before the Court by the investigating officer alongwith the charge-sheet and, therefore, those documents cannot be extraneous material. 5. In the case of S. Sagar Suri and others Vs. State of U.P.? and others (2000) 2 SCC, 636. The Hon’ble Apex Court held? that where complaint under Section 138 of the Negotiable Instruments Act was already pending, criminal proceedings for offence under Sections 406 and 420 I.P.C. was a mere misuse of the process of law and as such, criminal proceedings could be quashed by the High Court under Section 482 Cr.P.C. 6. In the present case, the criminal case for offences under Sections 420,452,323,504 and 506 (2) I.P.C. preceded the complaint under Section 138 Negotiable Instruments Act.? In the present case, the criminal case for offences under Sections 420,452,323,504 and 506 (2) I.P.C. preceded the complaint under Section 138 Negotiable Instruments Act.? If the criminal proceedings initiated on the first information report and the protest petition be quashed, the informant shall not have remedy for the offences under Sections 452,323,504 and 506 (2) I.P.C. and only trial of the accused under Section 420 I.P.C. shall be repeated? because the learned Magistrate has already taken cognizance and summoned the accused for offence under Section 420 I.P.C.? and Section 138 of Negotiable Instrument Act in the complaint case. 7. The revisionists have an opportunity of? putting their case before the Magistrate under Section 239 Cr.P.C.? and on that occasion, they may bring to the notice of the Magistrate that the trial for offence under Section 420 I.P.C. cannot be repeated? in both the? cases?? and the Magistrate may pass suitable order at that stage. 8. The revision being devoid of merits is hereby dismissed. However,? no coercive action shall be taken against the revisionists if? they approach the lower Court and avail opportunity? under Section 239 Cr.P.C. within? two months of the date of this order.