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2020 DIGILAW 1274 (ALL)

Babu Khan v. State Of U. P.

2020-11-03

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicant, Babu Khan, with a prayer for setting aside impugned summoning order, dated 6.6.2019, passed by the Additional Chief Judicial Magistrate, Court no.4, Aligarh, whereby, applicant has been summoned in Criminal Complaint Case No.12, New No.30 of 2018 (Shamsher vs. Babu Khan), under Section 138 of Negotiable Instrument Act In short N.I. Act), Police Station Quarsi, District Aligarh, pending in the court of Additional Chief Judicial Magistrate, IV, Aligarh. 2. Learned counsel for applicant argued that in response to the notice given by the complainant, a reply, in detail, denying alleged issuance of cheque was given by the applicant, but, it was written in the complaint and affidavit, filed, in support thereof, that no reply of notice was there, which was utterly wrong and even then impugned summoning order has been passed, which was under abuse of process of law. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer. 3. Learned AGA, representing State of U.P., has vehemently opposed this Application. 4. Having heard learned counsel for both sides and gone through the impugned order as well as complaint filed before the Chief Judicial Magistrate, Aligarh, it is apparent that a complaint for offence punishable, under Section 138 of N.I. Act, of Police Station Quarsi, District Aligarh, was filed in the court of Chief Judicial Magistrate, being Complaint Case No.12 of 2018, by Shamsher against Babu Khan, with this contention that both of them were under acquaintance. On 15.6.2015, Rupess Three Lakhs and Fifty Thousand and on 20.6.2017, Rupees Two Lakhs, in all Rupees Five Lakhs and Fifty thousand, was taken by Babu Khan, for purchasing a house and solemnising marriage of his daughter and this money was paid by the complainant from the amount obtained by sale of his house, situated at Delhi. Subsequently, money was demanded back, but, it was not paid back. Ultimately, a cheque, dated 24.11.2017, bearing no. 085984, of Account No.50394686687 of Allahabad Bank, for Rupees Five Lakh and Fifty Thousand was issued in favour of complainant, Shamsher. It was assured to be honoured by the Bank, concerned, if deposit made on 24.11.2017. This was presented for its payment, but, was dishonoured by the Bank, vide its Bank Memo, dated 30.11.2017. 085984, of Account No.50394686687 of Allahabad Bank, for Rupees Five Lakh and Fifty Thousand was issued in favour of complainant, Shamsher. It was assured to be honoured by the Bank, concerned, if deposit made on 24.11.2017. This was presented for its payment, but, was dishonoured by the Bank, vide its Bank Memo, dated 30.11.2017. A notice, through counsel, was issued to Opposite party, but, even after service, no compliance was there. Hence, offence, punishable, under Section 138 of N.I. Act was made out and as such a prayer for punishment was made. 5. Learned Magistrate registered it as a complaint case and examined the complainant, under Section 200 of Cr.P.C., by way of affidavit, documentary evidence, original Cheque No. 085984, for Rupees Five Lakh and Fifty thousand, dated 24.11.2017, with its return memo of dishonour and notice issued through counsel, with its postal receipt, was filed and the contention in oral statement was in corroboration with the contention of the complaint, which stood further corroborate by documentary evidence, as above. Hence, a notice, dated 11.12.2017 was issued, which was served and within stipulated period, after non payment of the amount, within fifteen days, this complaint was filed on 4.1.2018. Hence, impugned summoning order, dated 6.6.2019, was passed, whereby, Babu Khan, applicant herein, was summoned for offence, punishable, under Section 138 of Negotiable Instrument Act. 6. Thus, contention of the complaint was in corroboration, with evidence, collected by the Magistrate, during enquiry. There was sufficient ground for passing of impugned summoning order, as above, and the Magistrate was well within its jurisdiction to pass impugned summoning order. The factual aspect, being argued before this Court, is not to be seen by the Court, in exercise of its inherent jurisdiction, under Section 482 of Cr.P.C. 7. Hence, under all above facts and circumstances, this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to make analytic analysis of factual aspects because the same is a question, to be gone into, during course of trial, by the Trial court. 8. Apex Court, in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588 : (2010) 6 SCALE 767 : 2010 Cr. 8. Apex Court, in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588 : (2010) 6 SCALE 767 : 2010 Cr. LJ 3844, has propounded that "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court". In another subsequent judgment, in the case of Hamida v. Rashid, (2008) 1 SCC 474 , Hon'ble Apex Court propounded that "Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice". In again yet another judgment, in the case of Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781 , the Apex Court has propounded "Inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself." While interpreting this jurisdiction of High Court Apex Court, in the case of Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 , has propounded "High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings". 9. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings". 9. Regarding prevention of abuse of process of Court, Apex Court, in the case of Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494 , has propounded "To prevent abuse of the process of the Court, High Court, in exercise of its inherent powers under section 482, could quash the proceedings, but, there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in the case of State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1 , Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not". Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. 10. In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly.