Research › Search › Judgment

Uttarakhand High Court · body

2018 DIGILAW 403 (UTT)

PAVAN KUMAR NATH v. STATE OF UTTARAKHAND

2018-07-23

LOK PAL SINGH

body2018
JUDGMENT Hon'ble Lok Pal Singh, J. By means of present criminal misc. application, moved under Section 482 of Cr.P.C., the applicant has sought quashing of order dated 27.03.2018, passed by Addl. Sessions Judge II, Nainital, in criminal revision no. 131 of 2017, Pavan Kumar Nath vs State and another, as also the order dated 10.11.2017, passed by Judicial Magistrate, Naintial, in criminal complaint case no. 504 of 2013, Rashmi Bhatt vs Pavan Kumar Nath, under Section 138 of Negotiable Instruments Act. 2. Brief facts of the case are that complainant/respondent no. 2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I. Act') against the applicant, which was registered as criminal complaint case no. 504 of 2013. According to the complainant/respondent no. 2, the applicant in order to discharge the loan of Rs.1,00,000/- issued one account payee cheque dated 20.08.2011 of the said amount. On presentation, the said cheque was dishonoured for the reasons ‘funds insufficient'. Hence a statutory notice dated 22.03.2012 was issued, which was received by the application on 23.03.2012. Since despite notice being issued, the applicant did not return the amount, a complaint under Section 138 of the N.I. Act was filed by the complainant/respondent no. 2 against him. 3. In the criminal complaint case, the complainant/respondent no. 2 got herself examined under Section 200 Cr.P.C. and filed certain documents in support of her complaint. Complainant also filed a receipt dated30.07.2010 in support of her complaint. After the prosecution evidence was closed, the statement of he applicant was recorded. In his statement, applicant denied the existence of any receipt and claimed it to be forged and, accordingly, moved an application before the trial court with a prayer that the receipt dated 30.07.2010 be sent to the Forensic Science Laboratory for verification of his signatures. 4. The trial court vide order dated 26.10.2015, allowed the application of the applicant and directed to send receipt dated 30.07.2010, cheque no. 235609 and other documents, viz., vakalatnama and order sheets to the Central Forensic Science Laboratory, New Delhi of comparison of signatures and for determining the age of ink. 4. The trial court vide order dated 26.10.2015, allowed the application of the applicant and directed to send receipt dated 30.07.2010, cheque no. 235609 and other documents, viz., vakalatnama and order sheets to the Central Forensic Science Laboratory, New Delhi of comparison of signatures and for determining the age of ink. The CFSL vide letter dated 14.02.2017, submitted its report mentioning therein that on critical examination of documents and their comparison, it has been felt necessary to have ample number of admittedly genuine signatures of the contemporary period as that of the questioned ones of the person (applicant herein) along with a few more sheets of his specimen signatures. After the report was submitted by the CFSL, applicant filed another application before the trial court on 05.06.2017 stating that the requirement of signature of applicant of contemporary period by CFSL does not appear to be correct since there are admitted signature of applicant available with the CFSL and, therefore, the CFSL be directed to compare the signature of the accused on the questioned document with the signature on the four cheques available with the CFSL. Complainant/respondent no. 2 filed objections against the application dated 05.05.2017. The trial court after hearing the parties dismissed the application as not maintainable vide order dated 09.06.2017. 5. Thereafter in compliance of the order dated 28.07.2017 passed by learned Sessions Judge, Nainital, said documents were again sent to the CFSL, Delhi. CFSL, Delhi vide its report dated 20.09.2017, sent to the trial court, mentioned that – ‘it is not possible to ascertain the age on the ink of the signatures on the basis of technology available with the laboratory'. 6. Thereafter, the applicant again moved an application dated 31.10.2017 before the trial court with the prayer that, in case, the CFSL does not have the technique to ascertain the age of ink then the order sheet and other applications, containing signatures of the application, available on the record of trial court and the existing specimen signatures available with Vijaya Bank, Nainital, be called and the same be sent for comparison to any other laboratory. The trial court vide order dated 10.11.2017 rejected the application 199B of the applicant, and objection 201B thereon, holding that in the facts and circumstances of the case it appears that the applicant has moved the said application in this old case only to linger on the proceedings of criminal complaint case. 7. Feeling aggrieved by the same, applicant preferred criminal revision no. 131 of 2017 before II Addl. Sessions Judge, Nainital. The revisional court after hearing learned counsel for the parties and after perusal of the material available on record does not find any infirmity and illegality committed by the court below and dismissed the revision, affirming the order dated 10.11.2017, vide its order dated 27.03.2018. Hence, present C-482 petition. 8. Second application for the same relief is not maintainable. The learned Magistrate has observed in its order giving detailed reasons that there is no good ground to allow the application as this is a second application for the same relief and the application has been filed only to delay the hearing of the criminal proceedings. The learned Magistrate has also observed that the criminal case is pending since 2011. 9. The applicant himself has not complied with the directions issued by the revisional court for giving his sample signature for comparison by a hand writing expert. Since the direction issued by the revisional court to the applicant was that he shall give the specimen of his signatures for comparison, but the applicant did not comply with the directions issued on 19.08.2017 and unnecessarily delayed the criminal proceedings. 10. Both the courts below have recorded categorical findings while rejecting the application filed by the applicant for comparison of signatures on the order sheet and other applications with the existing signatures available with the bank. Admittedly, the case under Section 138 of N.I. Act is pending since 2011. The applicant on one pretext or another has delayed the hearing of the case. 11. A trial under Section 138 of N.I. Act should be decided within six months as per the mandate of Section 143(3) of the Negotiable Instruments Act, 1881. The same is extracted here-in-below: “Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be madeto conclude the trial within six months from the date of filing of the complaint." 12. The same is extracted here-in-below: “Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be madeto conclude the trial within six months from the date of filing of the complaint." 12. Learned counsel for the applicant has placed reliance on the judgment of Hon'ble Apex Court rendered in Kalyani Baskar (Mrs.) vs M.S. Sampoornam (Mrs.), (2007) 2 SCC 258 . I have gone through the judgment of Hon'ble Apex Court rendered in Kalyani Baskar's case (supra). The ratio of said judgment is not applicable to the present case. Applicant himself failed to give his specimen signatures to the CFSL. Thus, this court is of the view that the applicant could not take the benefit of his own wrong. It is settled proposition of law that a person cannot take benefit of his own wrong. 13. A perusal of the record would reveal that the application filed by the applicant before the court below was with the sole object to protract the trial. As per the mandate of Section 143(3), a trial under Section 138 of the N.I. Act should be decided within six months, but the applicant has succeeded to keep the proceedings of the case pending for more than six years. 14. The powers under Section 482 of Cr.P.C. are revisional in nature and it is essential that rules of procedure designed to ensure justice should be scrupulously followed. The applicant failed to bring his case within the ambit of grave injustice. As second application for the same relief is not maintainable, the same has rightly been rejected by the trial court and the revisional court has rightly affirmed the order passed by the trial court. This Court in exercise of its jurisdiction under Section 482 of Cr.P.C. cannot exercise its jurisdiction as atrial court or appellate court. This Court does not find any illegality, perversity or jurisdictional error committed by the courts below. 15. The people of this country are losing faith in the judicial system as the litigants are taking the benefit of technical grounds at every stage by filing the criminal revision or criminal misc. application under Section 482 Cr.P.C. for seeking interference against an interlocutory order just for the purpose of keeping the litigation pending for decades. In view of this Court, this case is a gross abuse of process of law at the hands of the applicant. application under Section 482 Cr.P.C. for seeking interference against an interlocutory order just for the purpose of keeping the litigation pending for decades. In view of this Court, this case is a gross abuse of process of law at the hands of the applicant. The criminal misc. application is devoid of merit and the same is dismissed as such. 16. Considering the fact that present criminal misc. application, filed under Section 482 of Cr.P.C., by the applicant is a gross abuse of process of law, this Court imposes an exemplary/compensatory cost of Rs. 50,000/- on the applicant to be payable to the respondent /complainant within a period of one month. The trial court shall explore every possibility to decide the case pending before it expeditiously, solely on its own merit, keeping in mind the spirit contained in sub-section (3) of Section 143 of the Negotiable Instruments Act, 1881. It is also directed that the trial court shall not grant unnecessary adjournment to either of the parties.