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2023 DIGILAW 311 (UTT)

Ramji Verma v. State of Uttarakhand

2023-05-16

SHARAD KUMAR SHARMA

body2023
JUDGMENT : Sharad Kumar Sharma, J. These are the four C482 applications, the precise facts of the each of the C482 applications are required to be considered. 2. The Criminal Complaint Case No.1008 of 2015, “Amay Diwedi Vs. Ramji Verma”, was instituted before the court of Judicial Magistrate, 2nd Haridwar on 14th July, 2015. As per the contents of the complaint, the allegation of the complainant/respondent, herein, was to the effect, that a cheque bearing cheque no.057373, dated 30.04.2015, for an amount of Rupees Two Lakh, was issued from the Axis Bank, Branch of Buxar, from A/c No.914010007760650, which on its presentation on 16.05.2015, was dishonoured, with the remark of the bank dated 02.06.2015, that the fund was found to be insufficient. On demand notice being sent by the drawer on 10.06.2015, the same was returned with the refusal by an order dated 23.06.2015, and consequently, the complaint was instituted on 14.07.2015. 3. What is surprising is that when the complaint proceedings were drawn before the court of Judicial Magistrate, 2nd, Haridwar and was registered as Criminal Complaint Case No.1008 of 2015, “Amay Diwedi Vs. Ramji Verma”, it didn’t find reference of the complaint proceedings drawn by the respondent at the competent court at Buxar, Bihar. 4. It is argued by the learned counsel for the applicant that the complaint proceedings, which was drawn at Buxar, Bihar, too was in relation to the Cheque No.057373, dated 30.04.2015, and as such, the subsequent proceedings as it was instituted before this Court, would not be sustainable. He further submits, that the present complaint proceedings as drawn by the complainant being Criminal Complaint No.1008 of 2015, would be bad in the eyes of law, because the principal instrument, which has been returned, to be as dishonoured by the bank, has had to be presented in original along with the complaint. Since the same was filed before the court of CJM, Buxar, Bihar, in that eventuality, the present complaint proceedings could not have been instituted in the absence of the original instrument being placed on record. 5. Since the same was filed before the court of CJM, Buxar, Bihar, in that eventuality, the present complaint proceedings could not have been instituted in the absence of the original instrument being placed on record. 5. At the stage, when the coordinate Bench was considering the stay application, the Court has considered the impact of the institution of the complaint proceedings at Buxar, Bihar, and non disclosure of the said fact in the present complaint, on which the cognizance has been taken, by the court concerned, on which the present applicant has been summoned. 6. The respondent no.2, was noticed by this Court. Steps have been taken, and there is an office report dated 09.07.2022, that respondent no.2, has been served personally, but still the respondent no.2, has not yet put in appearance. Since the service has been satisfactorily effected on respondent no.2, he will be treated to have been satisfactorily served and despite of it since he has not filed his counter affidavit, this C482 application is being considered on its own merit, in his absence. 7. It has been further informed by the learned counsel for the applicant, that the complaint as filed by the respondent no.2, before the courts at Buxar, Bihar, the same was dismissed for want of prosecution on 19.10.2015. 8. In C482 Application No.583 of 2019, it relates to the Criminal Complaint Case No.1009 of 2015, “Amay Diwedi Vs. Ramji Verma”, in which the challenge has been given to the summoning order, as issued in the said complaint case i.e. the summoning order dated 29.9.2015, in this case too, it is almost akin circumstances, which is under consideration, because the complainant has come up with the case that the summoning order in the complaint proceedings would be bad, because in relation to the same instrument, the similar proceedings under section 138 of the NI Act, was instituted before the court of CJM, Buxar, Bihar, being Criminal Complaint Case No.682 of 2015, and this fact too while instituting the complaint proceedings under section 138 of the NI Act, before the court of Judicial Magistrate, 2nd Haridwar. The said fact of the institution of the earlier complaint was concealed. In this case too, the notices were issued to the respondent, who has reported to have been served with the notices. Neither the respondent has not put in appearance nor any counter affidavit has been filed. 9. The said fact of the institution of the earlier complaint was concealed. In this case too, the notices were issued to the respondent, who has reported to have been served with the notices. Neither the respondent has not put in appearance nor any counter affidavit has been filed. 9. In C482 Application No.584 of 2019, it is almost an akin situation, which arises from the Criminal Complaint Case No.1013 of 2015, “Amay Diwedi Vs. Ramji Verma”, as instituted by the respondent before the court of Judicial Magistrate, 2nd, Haridwar with regards to the dishonour of the instrument as referred to in paragraph no.2, of the complaint, which relates to the instrument being cheque no.057374, dated 25.05.2015, which too has been returned as dishonoured, hence and the complaint proceedings were drawn by the respondent before the court of Judicial Magistrate, Haridwar on 14.07.2015. 10. The respondent, herein, had also instituted a Complaint Case No.683 of 2015, before the court of Chief Judicial Magistrate, Buxar, Bihar in relation to the same instrument by filing the same before the competent court on 06.07.2015. In this case too, while considering the said aspect, the coordinate Bench while issuing notices to the respondent had granted the interim order and taking into consideration the effect of the institution of the earlier complaint before the courts at Buxar, Bihar. The Court has granted an interim order on 09.05.2019. Respondent was noticed. Respondent no.2, has been served with the notices and has not put in appearance so far. 11. In C482 No.585 of 2019, the present applicant has put a challenge to the proceedings of the Complaint Case No.1012 of 2015, “Amay Diwedi Vs. Ramji Verma”, wherein, the summoning order has been issued on 29.09.2015, against him by the court of Judicial Magistrate, 2nd Haridwar, for being tried for the offences under section 138 of the NI Act, in relation to the dishonour of the instrument, which has been referred to in the complaint as to be the cheque no.57375, dated 01.06.2015. This complaint was instituted on 14.07.2015. 12. In this C482 application too, the respondent had instituted Section 138 of the NI Act, proceedings, before the court of CJM, Buxar, Bihar, being (Complaint Case No.683 of 2015) which stood instituted in relation to the same instrument, as would be apparent from the contents of the complaint, which was instituted on 06.07.2015. This complaint was instituted on 14.07.2015. 12. In this C482 application too, the respondent had instituted Section 138 of the NI Act, proceedings, before the court of CJM, Buxar, Bihar, being (Complaint Case No.683 of 2015) which stood instituted in relation to the same instrument, as would be apparent from the contents of the complaint, which was instituted on 06.07.2015. In this case too, the Court has issued notices to the respondent while granting the interim order on 09.05.2019, but despite of the service of the notice, the respondent no.2, has not put in appearance. 13. Since in all these C482 applications, the respondent no.2, has been served with the notices, and has not put in appearance, this Court has got no other option, except to proceed to decide the C482 application on its own merits, because keeping it pending owing to the aforesaid backdrop, where the respondent no.2, has already invoked the jurisdiction of the competent court of Chief Judicial Magistrate, Buxar, Bihar, he cannot be permitted to abuse the process of law by instituting the subsequent complaint before the court of 2nd Judicial Magistrate, Haridwar by concealment of a fact, of the institution of the earlier complaint proceeding under section 138 of NI Act, at Buxar, Bihar. Apart from it, there is nothing on record to show that the complaint proceedings, which has been respectively instituted by the respondent no.2, the principal instrument was made as part of the proceedings of the complaint case, which has been instituted before the court of 2nd Judicial Magistrate, Haridwar. 14. On account of the fact, and that as informed by the learned counsel for the applicant that all the C482 applications, which was instituted on 06.07.2015 by the respondent no.2, at Buxar, Bihar, they have been dismissed for want of prosecution on 19.10.2015, it will be absolutely a fruitless exercise and rather a proceeding which is not sustainable in the eyes of law, to continue with the complaint proceedings, which has been filed before the court of 2nd Judicial Magistrate, Haridwar, and continuance of the same would be a rather an abuse. 15. 15. In those circumstances, particularly, when the 138 of the NI Act proceedings, itself was not sustainable, since it was based upon the concealment of the fact, and that the respondent no.2, has not appeared before Court with clean hands, coupled with the fact that when the instrument itself was presented for its encashment in the banking institution at Bihar, the place of institution of the proceedings would be at Buxar, Bihar, where the instrument was actually presented in original, and upon its dishonour, where the applicant has already invoked the jurisdiction of the Court of the CJM, Buxar, Bihar, the subsequent proceedings by way of filing of a present complaint proceedings before the court of 2nd Judicial Magistrate, Haridwar, would not be maintainable (1) because of the non presentation of the instrument in original (2) because, the present proceedings before the court of 2nd Judicial Magistrate, Haridwar, would not be a court where the cognizance could have been taken once the complaint, was not supported by the principal instrument, which is said to have been dishonoured, also. (3) because of the fact that respondent no.2, since has not been diligent enough to respond to the notice issued by this Court (4) since the principal complaint proceedings drawn at Buxar, Bihar had already been dismissed for want of prosecution on 19.10.2015. 16. The C482 application would stands allowed, and as a consequence thereto, the respective complaint cases, as it engages consideration in all these C482 applications, would hereby stand quashed.