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2013 DIGILAW 244 (HP)

Vinodbhai v. STATE OF H. P.

2013-04-05

DEV DARSHAN SUD

body2013
JUDGMENT DEV DARSHAN SUD,J - 1. PETITIONER challenges the legality of the summoning order passed by the learned Judicial Magistrate, Ist Class, Nalagarh dated 24.4.2008. The order reads as follows: "Office report seen. Ld. Counsel for the complainant has filed exemption application on behalf of the complainant which is considered and is allowed. Now to come up for presence of complainant on 16.5.2008." 2. THE petitioner invokes the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (Cr.P.C. for short hereinafter) for quashing the complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'N.I. Act' ) praying that it is an abuse of the process of the Court as the cheque subject matter of the complaint was given a security which was later on manipulated by respondent No.2. Sh. K.D. Sood, learned senior counsel submits that prima facie from the documents on record it is clear and evident that the cheque in question was handed over to respondent No.2 in the year 2006 as security which fact stands accepted by this respondent and later on this cheque was manipulated in the year 2008 and criminal proceedings are being used to harass the petitioner. Mr. Satyen Vaidya, learned counsel appearing for respondent No.2 submits that these averments are matter of substantive evidence and facts which would require adjudication by the Court. No prima facie case has been made out. 3. IN Jitendra Raghuvanshi and others Vs. Babita Raghuvanshi and another, JT 2013 (4) S.C. 98, the Supreme Court holds: 9. Learned counsel for the parties, by drawing our attention to the decision of this Court in B.S. Joshi and Others vs. State of Haryana and Another, (2003) 4 SCC 675 , submitted that in an identical circumstance, this Court held that the High Court in exercise of its inherent powers under Section 482 can quash criminal proceedings in matrimonial disputes where the dispute is entirely private and the parties are willing to settle their disputes amicably. It is not in dispute that the facts in B.S. Joshi (supra) are identical and the nature of the offence and the question of law involved are almost similar to the one in hand. It is not in dispute that the facts in B.S. Joshi (supra) are identical and the nature of the offence and the question of law involved are almost similar to the one in hand. After considering the law laid down in State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335 and explaining the decisions rendered in Madhu Limaye vs. State of Maharashtra, (1977) 4 SCC 551 , Surendra Nath Mohanty and Anr. vs. State of Orissa, (1999) 5 SCC 238 and Pepsi Foods Ltd. and Anr. vs. Special Judicial Magistrate and Ors., (1998) 5 SCC 749 , this Court held: "8. ... ......we are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.................. 11. The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi (supra), this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at.... 13.................. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders". (P.101&102) 4. I need not multiply precedent any further as on this aspect the law stands concluded by a number of decisions of the Supreme Court. Submission made by the learned senior counsel is that the respondent seeks invocation/manipulation of the process of law only with the avowed purpose of wreaking vengeance and not bonafide for vindication of any legal right. All that I need say is that it would be open to the petitioner herein to establish these facts in accordance with law in these proceedings or separate proceedings. It would be open to the petitioner to seek redressal in any civil/ criminal proceedings to establish his claim as pleaded in this petition and on any other grounds available to him in law and fact. Other submission made by the learned senior counsel is that the petitioner will be harassed and will be dragged to Court on every date of hearing which itself would constitute sufficient harassment in the case which is otherwise not within the cognizance/jurisdiction of the Judicial Magistrate. I direct that the petitioner shall not be summoned/called to the Court on every date of hearing and shall be allowed representation through a duly authorized representative/ attorney/lawyer. The presence of the petitioner shall only be directed when the evidence is to be recorded on behalf of the complainant (if the petitioner so desires). It will also be open to the petitioner to urge that the material on record is not sufficient to attract the jurisdiction of this Court. In Lalu Prasad alias Lalu Prasad Yadav Vs. State of Bihar through CBI (AHD) Panta, (2007) 1 SCC 49 , the Supreme Court holds: "16. But where the question of jurisdiction is raised and the trial Court is required to adjudicate that issue, it cannot be said that reasons are not to be recorded. In Lalu Prasad alias Lalu Prasad Yadav Vs. State of Bihar through CBI (AHD) Panta, (2007) 1 SCC 49 , the Supreme Court holds: "16. But where the question of jurisdiction is raised and the trial Court is required to adjudicate that issue, it cannot be said that reasons are not to be recorded. In such a case reasons relate to question of jurisdiction and not necessarily to the issue relating to framing of charge. In such a case reasons dealing with a plea relating to jurisdiction have to be recorded". (P.59). 5. IN this eventuality, it will be open to the petitioner to urge that the court has no jurisdiction to decide the case. I am alive to the fact that the summoning order cannot be recalled but if the material on record is sufficient to establish that the Court has no jurisdiction, then surely it cannot proceed with the case further. Petition is disposed of. 6. PARTIES to appear before the learned trial Court on 15th May, 2013.