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2013 DIGILAW 385 (UTT)

HARMINDER SINGH v. STATE OF UTTARAKHAND

2013-06-26

Alok Singh

body2013
JUDGMENT Hon’ble Alok Singh, J. (Oral) In the present petition, order dated 16.06.2012, passed by Special Judicial Magistrate, Dehradun, whereby learned Magistrate was pleased to summon the present petitioner as an additional accused while exercising the powers under Section 319 of the Code of Criminal Procedure, is being assailed. 2. Brief facts of the present case, inter alia, are that complainant/ respondent herein preferred a complaint before the learned trial Magistrate under Section 420 IPC and Section 138 Negotiable Instrument Act, stating therein O.Ps no.2 & 3 were the partners of O.P. no.1 M/s Seven Communications; complainant was a consultant and used to work for M/s Reliance World; meeting of complainant with M/s Seven Communications and others was arranged; complainant and O.Ps no.2 and 3 agreed and decided that both of them would work on the Center of Reliance World; complainant was to provide technical advice while M/s Seven Communications was to supervise quality check; after settlement, O.Ps agreed in writing to pay ‘ 65,00,000/- to the complainant; pursuant to settlement, O.Ps handed over cheque no. 758750 of ‘65,00,000/- dated 07.09.2008 to the complainant; on presentation, cheque was returned on 27.05.2008 with the endorsement “fund insufficient”; a legal notice was issued, by registered post A.D. on 21.05.2008 along with U.P.C. on the correct address of the O.Ps, however, within the statutory period of the notice, O.Ps failed to make payment of the cheque, therefore complaint. 3. Learned Magistrate, vide order dated 17.09.2008, was pleased to summon M/s Seven Communications as well as O.P. no.3 being partner of the M/s Seven Communications under Section 138 of Negotiable Act. It has been specifically observed by the learned Magistrate, in the summoning order, that no material was produced before the Court to suggest that Harminder Singh, present petitioner herein was the partner; moreover cheque was not under the signature of Harminder Singh, therefore, there was no sufficient ground to summon Harminder Singh, present petitioner. Learned Magistrate further observed that there was absolutely no material justifying the summoning for an offence under Section 420 IPC. 4. Learned Magistrate further observed that there was absolutely no material justifying the summoning for an offence under Section 420 IPC. 4. During the hearing, complainant / respondent no.2 herein on 08.06.2012, moved an application under Section 319 Cr.P.C. requesting the court to summon the present petitioner as an additional accused stating therein that during the cross-examination on 05.10.2009, it has come on the record that Harminder Singh, present petitioner was also partner and involved in day today affairs of the partnership firm. 5. Learned Magistrate, having heard learned counsel for the parties and having perused the record, was pleased to summon the present petitioner as additional accused. Feeling aggrieved, petitioner has approached this Court. 6. I have heard, Mr. Ramji Srivastava, learned counsel for petitioner and Ms. Priya Hingorani, learned counsel for respondent no.2 and have carefully perused the record. 7. Ms. Priya Hingorani, learned counsel for respondent no.2. raised preliminary objections to the effect that since, petitioner has efficacious alternate remedy of filing criminal revision before the Sessions Court, therefore petitioner should not be allowed to invoke jurisdiction of this Court under Section 482 of the Code. She further contended that in a petition under Section 482 of the code relief sought should be of quashing of the impugned order while petitioner has sought the relief of setting aside of impugned order, therefore, petitioner should be directed to approach Sessions Judge for setting aside of impugned order. 8. In the considered opinion of this Court, jurisdiction of this Court under Section 482 of Code of Criminal Procedure is akin to the revisional jurisdiction. Moreover, inherent jurisdiction can be exercised by this Court, in appropriate case when learned trial court seems to have committed legal and jurisdictional error or this Court finds that in the end of justice interference by this Court would be required. Present petition was admitted way back on 31.10.2012, therefore, at the final disposal stage, petition should not be thrown on the hyper-technical ground of alternate remedy. Moreover, alternate remedy is not an absolute bar. 9. Undisputedly, in the present case, partnership firm as well as Amit Pal Singh, another partner of the firm, who has signed the cheque in question, are facing trial under Section 138 Negotiable Instrument Act. 10. Hon’ble Apex Court in the case of Michael Machado and another vs. C.B.I. reported in 2000 (3) SCC, 262, has held as under: 11. 9. Undisputedly, in the present case, partnership firm as well as Amit Pal Singh, another partner of the firm, who has signed the cheque in question, are facing trial under Section 138 Negotiable Instrument Act. 10. Hon’ble Apex Court in the case of Michael Machado and another vs. C.B.I. reported in 2000 (3) SCC, 262, has held as under: 11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. 12. But even then, what is conferred on the court is only a discretion as could be discerned from the words “the court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till them, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons. 11. Judgment of Apex Court in the case of Michael Machado (Supra) was later on relied upon in the case of Lok Ram vs. Nihal Singh reported in (2006) 10 SCC, 192. 12. As per the dictum of Apex Court power under Section 319 of the code must be exercised carefully, very sparingly, bearing in mind that there is no compelling duty on the court to proceed against other persons. 12. As per the dictum of Apex Court power under Section 319 of the code must be exercised carefully, very sparingly, bearing in mind that there is no compelling duty on the court to proceed against other persons. This is a discretionary power and should be exercised only to achieve criminal justice and court should not turn against other persons, whenever it comes across evidence connecting other persons also with the offence. 13. As observed herein before, partnership firm and one of the partner namely, Amit Pal Singh, who has signed the cheque are already facing the trial. Object of Section 138 of Negotiable Instrument Act is speedy recovery. Therefore, there seems to be no need to join the present petitioner as additional accused. Therefore judicial discretion was not exercised by the trial court correctly. 14. Mr. Ramji Srivastava, learned counsel for the petitioner, while placing reliance on the judgment of Apex Court in the case of Sohan Lal and others vs. State of Rajasthan, reported in 1990 (4) SCC, 580 has argued that if complaint was dismissed against any of the accused or any of the accused was discharged by the court, he can not be summoned by the aid of Section 319 of the Code at the subsequent stage. 15. On the other hand Ms. Priya Hingorani, learned counsel for the complainant/respondent no.2, while placing reliance on the case of S.S. Khanna vs. Chief Secretary, Patna and another, reported in AIR 1993 SC, 595 argued that if Magistrate has not issued summon against one of the accused on private complaint, that accused can be summoned at subsequent stage with the help of Section 319 of the Code. 16. I have examined both the judgments cited by learned counsel for the parties. In the case of Sohan Lal (Supra) Hon’ble Apex Court had occasioned to discuss the earlier judgment in case of S.S. Khanna (Supra). 17. Hon’ble Apex Court in the case of Sohan Lal in para no. 27 has held as under: It was held that having regard to the nature of the proceedings under Section 202 of the CrPC it may be difficult to hold that there is a legal bar based on the principle of issue estoppel to proceed under Section 319 against a person complained against on the same material, if the court has dismissed a complaint under Section 203. But the court did not express any final opinion on the question. 18. In case of Sohan Lal (Supra) it has further been held that the word “discharge” in Section 398 means discharge of an offence relating to the charge within the meaning of Sections 227, 239, 245 and 249. Refusing to proceed further after issue of process is discharge. The discharge has to be in substance and effect though there is no formal order. The language of the section does not indicate that the word “discharge” should be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after examination of the whole case. 19. In view of discussion made herein above, first of all present petitioner on the fact of the case ought not to have been summoned as 6 additional accused; secondly, after non issuance of summon against him by the Magistrate under Section 204 of the Code he ought not to have been summoned under Section 319 of the Code. 20. Therefore, present petition succeeds. Impugned order is quashed. 21. Learned trial court is directed to expedite the proceeding and conclude the same at the earliest and not to grant any unnecessary adjournment to either of the parties.