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2022 DIGILAW 285 (UTT)

Mohd. Anwar v. Subhash Chandra Kainthola

2022-09-05

SHARAD KUMAR SHARMA

body2022
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The applicant to the present C-482 Application has prayed for the following reliefs: “It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to quash the summoning order dated 24.08.2015 (Annexure-3) along with entire proceedings of Complaint Case No. 738 of 2015, Subhash Chandra Kainthola vs. Mohd. Anwar pending in the court of A.C.J.M. Kotdwar, District-Pauri Garhwal. It is further prayed that this Hon’ble Court may graciously be pleased to stay the further proceedings of Complaint Case No. 738 of 2015, Subhash Chandra Kainthola vs. Mohd. Anwar pending in the court of A.C.J.M. Kotdwar, District-Pauri Garhwal, till the disposal of the present criminal misc. application. To pass such other order which this Hon’ble Court may deem fit and proper to the facts and circumstances of the case.” 2. When this C-482 Application, which was instituted as back as on 10.04.2017, came up for consideration before the Coordinate Bench of this Court, the same was allowed in an ex-parte manner by judgment dated 11.04.2017. Later on, the complainant/respondent herein had filed a recall application. The recall application was considered by the Coordinate Bench of this Court and considering the fact that it was an ex-parte judgment, and that the C-482 Application was allowed, without hearing a complainant, in a complaint case, the judgment dated 11.04.2017, was recalled and the proceedings of Complaint Case No. 738 of 2015, Subhash Chandra Kainthola vs. Mohd. Anwar, was directed to be kept in abeyance. Taking advantage of the interim order passed by the Court, the matter remained pending till 29.07.2019 and till 21.08.2019 the date on which the applicant has expressed his opinion before the Court that he is agreeable for a conciliation. 3. Owing to the said statement made before the Coordinate Bench of this Court earlier the mediation was directed to be conducted and accordingly the Registrar Inspection/Mediation In-charge conducted a mediation and submitted its report on 21.8.2019, which is extracted hereunder: “HON’BLE COURT C-482 No. 496 of 2017 (Mediation Case No. 108 of 2019) The matter has been taken up today in the mediation. Mohd. Anwar (Applicant) and Subhash Chandra Kainthola (Respondent) are present. Attempts were made to settle the dispute between the parties at mediation. Two joint and two single sessions were held at length with both the parties. Mohd. Anwar (Applicant) and Subhash Chandra Kainthola (Respondent) are present. Attempts were made to settle the dispute between the parties at mediation. Two joint and two single sessions were held at length with both the parties. During the course of mediation applicant has submitted that he is ready to settle the matter amicably but require one month time to arrange the amount to make the payment to respondent. Respondent has no objection on granting time to applicant. There may be possibility that matter be settled down amicably between the parties. Therefore, one month time is required to sort out the matter. Let a report to this effect be submitted to the Hon’ble Court. Submitted (Shadab Bano) (Registrar (Inspection)/ (Mediation In-charge) 21.08.2019.” 4. In the mediation report dated 21.08.2019, it records, that the applicant has made a statement, that he is ready to settle the dispute, but requires one month time to make the payment to the respondent and the respondent had no objection on granting time to the applicant to make the payment as it was agreed. The said statement made before the Mediator as back as of 21.08.2019, was never honoured by the present applicant and the matter remained pending in the same State, before this Court, till the matter was once again taken up before the Mediator on 24.03.2021. On that date the counsel for the applicant did appear along with the counsel for the respondent, but owing to the absence of the present applicant the Mediator has submitted the following report on 24.03.2021: “HON’BLE COURT C-482 No. 496 of 2017 (Mediation Case No. 108 of 2019) The matter has been taken up today in the mediation. On behalf of the petitioner Mr. Kaushal Shah, Advocate and on behalf of the respondent Smt. Shruti Joshi, Advocate are present. In the absence of both the parties, efforts for mediation cannot be made out. It seems that parties are not interested to settle the matter amicably. Hence, the mediation proceeding is closed as unsuccessful. Let a report to this effect be submitted to the Hon’ble Court. Submitted (Shadab Bano) (Registrar (Inspection)/ (Mediation In-charge) 24.03.2021.” 5. Thereafter, the matter remained pending till the matter was lastly taken up on 02.09.2022 and later on, today. It seems that parties are not interested to settle the matter amicably. Hence, the mediation proceeding is closed as unsuccessful. Let a report to this effect be submitted to the Hon’ble Court. Submitted (Shadab Bano) (Registrar (Inspection)/ (Mediation In-charge) 24.03.2021.” 5. Thereafter, the matter remained pending till the matter was lastly taken up on 02.09.2022 and later on, today. The counsel for the applicant had attempted to carved out an exception, as to whether at all the proceedings under Section 138 of the Negotiable Instruments Act, 1881, could be carried against him, on which the cognizance have been taken, owing to the aspect which he attempted to argue, that it was absolutely a civil liability, which cannot be enforced by resorting to the proceedings under Section 138 of the Negotiable Instruments Act. 6. This argument which has been now belatedly raised by the applicant is not acceptable by this Court. There may be multifarious technical reasons, to assail a procedure prescribed for proceedings under Section 138 of the Negotiable Instruments Act, but being conscious of the exercise of powers under Section 482, the court proceedings are to be proceeded in a matter and in a manner, that it should create exemplar for the others. 7. The manner in which the applicant has conducted himself before the court is nothing, but rather an apparent abuse of process and rather by making misleading statements before the Court by settling the dispute and not honouring its conditions, and later on even participating in the proceedings after the grant of the interim order. Such type of a litigant has to be dealt with in a strong yardstick, so as to that they cannot play with the court proceedings, which in itself will be an abuse of process. So far as the technicalities of the proceedings under Section 138 of the Negotiable Instruments Act is concerned, the applicant would be rather estopped to raise any such plea and that too particularly when he himself has voluntarily undertaken to pay the amount in the settlement, which was entered into between the parties in 2019. So far as the technicalities of the proceedings under Section 138 of the Negotiable Instruments Act is concerned, the applicant would be rather estopped to raise any such plea and that too particularly when he himself has voluntarily undertaken to pay the amount in the settlement, which was entered into between the parties in 2019. He cannot resile away from the statement made by him before the court and take a somersaulted stand and that too at a much belated stage, which could be nothing but an intelligible exercise at the hands of the applicant to buy time in order to avoid compliance of the settlement agreeing for paying the amount in dispute which was arrived at in C-482 Application proceedings. 8. In that eventuality, the summoning order under Section 138 of Negotiable Instruments Act, itself will not be bad, it could be left open to the scrutinized by the court in the exercise of its power under Section 482 of the Code of Criminal Procedure. In an inherent exercise of its powers to avoid an abuse of process, in fact, the process of law has been abused by the applicant himself; hence, I am not inclined to interfere in the C-482 Application. 9. The C-482 Application is accordingly dismissed, with the cost of Rs. 10,000/- to be deposited in the High Court Bar Association Advocates Welfare Fund.