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2014 DIGILAW 136 (UTT)

BHUPINDER KUMAR LOOMBA v. HARBHAJAN SINGH

2014-03-28

U.C.DHYANI

body2014
JUDGMENT U.C. Dhyani, J. (oral) The grievance of the present applicant, who is accused in criminal complaint case no. 2415 of 2013, captioned as Harbhajan Singh vs Bhupinder Loomba, under Section 138 of the Negotiable Instruments Act, 1881, in a nutshell, is that proceedings under Section 340 of Cr.P.C. be initiated against the son of the complainant and he be acquitted under Section 256(1) of Cr.P.C. in default of the complainant. In other words, the submission of learned counsel for the applicant is that since the complainant did not appear in the proceedings of the court below, and instead, his son came and appended his signatures, therefore, the proceedings of the complaint case filed under Section 138 of the Negotiable Instruments Act be dropped against the applicant and the son of the complainant be prosecuted under Section 340 of Cr.P.C. 2. When such a submission was made before learned Special Judicial Magistrate, Dehradun, who is seized with the matter, he was of the view that the person doing pairavi on behalf of the complainant was none other than the son of the complainant. The complainant was duly represented by his counsel. It was not such a case that the complainant was totally un-represented. Even if the complainant was not present in person on certain dates, the counsel entered appearance for him, alongwith complainant’s son. No undue advantage was taken by the complainant’s son for appending his signatures on the order-sheet [he never portrayed himself as the complainant]. 3. It is provided under Section 256 of Cr.P.C. that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. Otherwise also, the Magistrate may, if he thinks it proper, adjourn the hearing of the case to some other day as is provided under sub-section (1) of Section 256 of Cr.P.C. 4. The proclamation of Lord Chief Justice Edward Coke that ‘Fraud avoids all judicial acts, ecclesiastical or temporal’ is not applicable in the present case. Otherwise also, the Magistrate may, if he thinks it proper, adjourn the hearing of the case to some other day as is provided under sub-section (1) of Section 256 of Cr.P.C. 4. The proclamation of Lord Chief Justice Edward Coke that ‘Fraud avoids all judicial acts, ecclesiastical or temporal’ is not applicable in the present case. It was held by the Hon’ble Apex court in A.V. Papayya Sastry vs Government of A.P., (2007) 4 SCC 221 , that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. The orders in the instant case, were not obtained by the complainant by playing fraud upon the Court, for nowhere it was portrayed by the son of the complainant that he was the complainant, nowhere he said that he was the power of attorney holder of the complainant. He was simply doing piaravi on behalf of his father. The most important thing is that the complainant was duly represented by his counsel. Son of the complainant neither appended his signatures as the complainant, nor he can be said to be an imposter. It is not necessary for learned Magistrate to dismiss the criminal complaint in the absence of the complainant, for the complainant in the instant case, was represented by his counsel and the law also provides that hearing of the case may be adjourned to some other day if the Magistrate for some reason thinks it proper to adjourn the hearing of the case. Proviso to sub-section (1) of Section 256 of Cr.P.C. is also clear on the point that where the complainant is represented by his counsel or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. 5. No illegality was, therefore, committed by learned Magistrate while passing the impugned order. 6. There is another aspect of the case. No offence was committed either by the complainant or his son against public justice or relating to documents given in evidence. In other words, there is nothing on record to suggest that Section 195 of Cr.P.C. / 340 of Cr.P.C. is in any way attracted. There is, therefore, no illegality in the orders impugned passed by learned Special Judicial Magistrate (trial court) or by learned Revisional Court (Sessions Judge, Dehradun). In other words, there is nothing on record to suggest that Section 195 of Cr.P.C. / 340 of Cr.P.C. is in any way attracted. There is, therefore, no illegality in the orders impugned passed by learned Special Judicial Magistrate (trial court) or by learned Revisional Court (Sessions Judge, Dehradun). No interference is called for in the said orders. 7. The application under Section 482 of Cr.P.C. fails and is, accordingly dismissed at the threshold.