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2017 DIGILAW 190 (UTT)

Atiya Sabri v. Shareef Ahmad

2017-03-21

U.C.DHYANI

body2017
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, petitioner seeks following relief, among others :- “(a) Quash the summoning order dated 17.08.2016 passed by Additional Chief Judicial Magistrate, Laksar, Haridwar in complaint case no. 244 of 2016 Shareef Ahmad v. Atiya Sabri, under Section 138 of Negotiable Instruments, Act 1881, pending before the Additional Chief Judicial Magistrate, Laksar, Haridwar. (b) Quash order dated 27.02.2017, passed by Additional Sessions Judge, Laksar, District Haridwar in Criminal Revision No. 533 of 2016, Atiya Sabri v. Shareef Ahmad.” 2. On a criminal complaint case filed by the complainant/respondent, the applicant was summoned to face the trial for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, by the Additional Chief Judicial Magistrate, Laksar, Haridwar, vide order dated 17.08.2016. Aggrieved against the same, the applicant accused preferred a criminal revision in the court of Sessions Judge, Haridwar, which was dismissed by learned Additional Sessions Judge, Laksar, Haridwar, vide order dated 27.02.2017. Hence the present application under Section 482 of Cr.P.C. 3. According to learned counsel for the applicant, the real facts of the case, as have been mentioned in the petition are as under:- “2 (e) That case of respondent does not cover under Section 138 of Negotiable Instruments Act 1881, as this is a case of forgery as in a forge manner account in the name of applicant has been opened in the bank with the collusion of bank employees & other persons and some how check book has been taken from bank by accused persons and that's why F.I.R has been lodged against accused persons. (3) That the real fact is that the applicant & respondent have not any such type of relationship as stated by respondent in his complaint but in really prior to filing compliant disputes are going on between applicant & respondent party. As respondent is dear and close of husband of applicant and against husband & other family members of husband of applicant, F.I.R was lodged in dowry case & other case under domestic violence and other sections case have been filed in Saharanpur Court. As since November 2015, applicant is living at her parental home at Saharanput after harassment committed by her husband & others. (4) That as by way of present compliant respondent want illegal & undue money from applicant and also this case is counter blast of dowry & harassment case. As since November 2015, applicant is living at her parental home at Saharanput after harassment committed by her husband & others. (4) That as by way of present compliant respondent want illegal & undue money from applicant and also this case is counter blast of dowry & harassment case. Because behind this case husband of applicant is playing mala-fide role. As respondent of this case is servant of husband of applicant. (5) That prima-facie case is not made out against applicant. And further case related to “Triple Talak” is pending against husband of applicant before Hon'ble Supreme Court of India and on 23.1.2017, Hon'ble Apex Court issued notices to opposite party. (8) That because not any account is dispute has been opened by applicant and that's why not any cheque has been issued by applicant as which cheque has been annexed by respondent before court below that cheque has not been signed by applicant. (10) That the complaint has been lodged just with a malafide intention and as a counter blast and to grab money from the applicant. (11) That by making a forged endorsement with regard to date & money & signature in it has also committed forgery by respondent for that FIR has been lodged against respondent & other persons.” 4. Complaint under Section 138 of the Act must contain the following ingredients, namely, (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; (iii) cheque so issued had been returned due to insufficiency of funds. 5. Judging from the aforesaid yardsticks, it appears to this Court that the complainant has succeeded in bringing out a prima facie case against the applicant before the trial court. Moreover, the order of the trial court has been affirmed by the revisional court. 6. When this Court posed a query to the learned counsel for the applicant as to whether the applicant has appended her signature on the cheque dated 10.05.2016 or not, learned counsel for the applicant replied to the said query in `negative'. Moreover, the order of the trial court has been affirmed by the revisional court. 6. When this Court posed a query to the learned counsel for the applicant as to whether the applicant has appended her signature on the cheque dated 10.05.2016 or not, learned counsel for the applicant replied to the said query in `negative'. When this Court compared the signatures appended on the photocopy of cheque in question with the applicant's signature appended on the affidavit filed in support of present petition under Section 482 of Cr.P.C, they were found to be the same. Prima facie, it cannot be said that the applicant has not appended her signature on the cheque in question. The Court has also compared applicant's signature appended on the cheque with her admitted signature on page 23 of the petition, which is a photocopy of the criminal revision filed by her before learned Sessions Judge, Haridwar. The Court did not find any dissimilarity in her signatures. 7. In a nutshell, the signatures of the applicant made on her affidavit enclosed with the present petition under Section 482 of Cr.P.C, on the photocopy of the cheque dated 10.05.2016 and in the criminal revision filed before the Sessions Judge, Haridwar are exactly the same. 8. When the foundation of criminal offence is laid against the applicant, the Court need not interfere in the concurrent findings of two courts below. 9. It is also a settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicant, in the instant case, is unable to pass those tests. 10. The narrow inspection hole through which this Court is expected to examine the matter under Section 482 Cr.P.C. is whether foundation of criminal offence is laid against the accused or not? If the reply to this question is in the affirmative, then there is no scope of interference in exercise of it's inherent jurisdiction. If, however, the Court comes to the conclusion that no offence against the accused is made out, then, of course, it can intervene in exercise of it's inherent jurisdiction and quash the proceedings pending before the Court below. 11. If, however, the Court comes to the conclusion that no offence against the accused is made out, then, of course, it can intervene in exercise of it's inherent jurisdiction and quash the proceedings pending before the Court below. 11. The scope of interference of this Court under Section 482 of Cr.P.C has been highlighted by Hon'ble Supreme Court in Rajiv Thapar and others v. Madan Lal Kapoor (2013) 3 SCC 330 and Amit Kapoor v. Ramesh Chander and another, 2013 (1) SCC (Crl) 986. 12. This Court, is therefore of the view that no interference is called for in the proceedings of the Court below, in exercise of its inherent jurisdiction. Application under Section 482 Cr.P.C. filed on behalf of the applicant is, therefore, dismissed at the threshold.