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2024 DIGILAW 602 (UTT)

Ravi Kanyal v. State of Uttarakhand

2024-09-21

RAKESH THAPLIYAL

body2024
JUDGMENT : RAKESH THAPLIYAL, J. 1. Present C482 application has been filed, challenging the proceedings of Criminal Complaint Case No. 1769 of 2023, Kiran Chandra Joshi vs. Ravi Kanyal, which has been initiated pursuant to the complaint filed by respondent no. 2 under Section 138 of the Negotiable Instruments Act. 2. Brief facts, of the case, are that a cheque was issued by the present applicant on 20.02.2020 to the respondent/complainant for an amount of Rs. 6.50 lakhs which was presented for encashment in the Bank on 15.04.2020, however it was returned back with an endorsement “funds insufficient” and again the same was presented for encashment in the Bank on 21.05.2020, which was returned back with an endorsement that the valid period of the cheque has been expired. Thereafter, the respondent/complainant sent a notice of demand on 18.06.2020 which was replied by the applicant on 29.06.2020, and, thereafter again a notice of demand was sent on 29.08.2020 which was also replied by the applicant on 14.09.2020. When the amount was not paid to the respondent/complainant then he filed complaint under section 138 of the Negotiable Instruments Act on 28.09.2020, in which the Trial Court initiated the process and summoned the applicant by order dated 11.04.2023. 3. Learned counsel for the applicant submits that the proceeding initiated pursuant to the complaint filed by the respondent/complainant under Section 138 of the Negotiable Instruments Act is an abuse of process of law. Apart from this he submits that the complainant did not disclose the fact in his complaint for what purposes the cheque was given and submits that there is no legally enforceable debt, hence, the proceedings be quashed. 4. In response to this, Mr. Barthwal, learned counsel for the complainant submits that earlier notice was given in general and was not confined to the cheque in question and for cheque in question, the notice was sent on 29.08.2020. Apart from this, he submits that on perusal of the complaint it reveals that the same is based upon the subsequent notice dated 29.08.2020 but this notice has deliberately not enclosed in the petition. Apart from this, he submits that in fact the respondent/ complainant was cheated by the present applicant and he is involved in several cases of such nature and he is indulge in grabbing the lands on through away prices of various people and farmers. Apart from this, he submits that in fact the respondent/ complainant was cheated by the present applicant and he is involved in several cases of such nature and he is indulge in grabbing the lands on through away prices of various people and farmers. The assertion to this aspect he has pleaded in Para 15 of his counter affidavit. 5. Mr. Barthwal, learned counsel for the complainant placed on record the copy of the notice dated 29.08.2020, and I perused the same and it appears from this notice that this notice is confined to the cheque in question. He further submits that the applicant deliberately has not enclosed the notice date 29.08.2020 and make an attempt to mislead the Court by giving reference of the earlier notice dated 18.06.2020, with intention to give impression to this Court that the subsequent notice is a second notice for the cheque in question. 6. I perused the order sheet and it reflects that the proceedings were never been stayed by this Court and only this much liberty was given to the applicant by order dated 07.06.2023 that he may seek an adjournment before the Trial Court which was extended on 01.08.2023. Thus, it is clear that the proceedings were never been stayed by this Court, however, this is undisputed fact that the cheque was issued by the present applicant and the same was dishonoured, and, subsequently the complaint was filed and the Trial Court after gone through the contents of the complaint and other materials initiated the process and summoned the present applicant. 7. Admittedly, the complaint was filed on 08.09.2020 in which the process have been initiated and the applicant was summoned by the Judicial Magistrate by an order dated 11.04.2023. More than 1 year has been passed and despite the fact that proceedings were never been stayed, the proceeding is still pending. 8. It is very strange that if the proceedings have not been stayed then why the Trial Court has not proceed with the trial. At this juncture it is necessary to give reference of Section 143 of the Negotiable Instruments Act which provides that every trial shall be conducted as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. Section 143 of the Negotiable Instruments Act is read as under: 143. Section 143 of the Negotiable Instruments Act is read as under: 143. Power of Court to try cases summarily: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. 9. This Court, in several cases, directed the Trial Court to conclude the proceedings initiated pursuant to the complaint filed under Section 138 of the Negotiable Instruments Act keeping in view the mandate of Section 143 of the Negotiable Instruments Act. 9. This Court, in several cases, directed the Trial Court to conclude the proceedings initiated pursuant to the complaint filed under Section 138 of the Negotiable Instruments Act keeping in view the mandate of Section 143 of the Negotiable Instruments Act. It is very strange that 1 year has been passed but even as on today the trial has not been commenced despite the fact that only this much liberty was given to the applicant to seek adjournment and in the garb of that order, the proceeding has yet not been concluded. 10. Taking into consideration that the present applicant has not approached with clean hands since he has suppressed the subsequent notice dated 29.08.2020, on the basis of which complaint was filed under Section 138 of the Negotiable Instruments Act, and even otherwise it is admitted fact that present applicant issued cheque in question for an amount of Rs. 6.50 lakhs to the respondent/ complainant in which the Trial Court after applying judicial mind summoned the present applicant and once the process have been initiated in the complaint under Section 138 of N.I. Act, this is for the accused to take all defense pleas before the Trial Court and the factual aspects cannot be examined under Section 482 Cr.P.C. until and unless there is glaring abuse of process of law. 11. Accordingly, I do not find any merit in the present application preferred under Section 482 Cr.P.C. and the same is accordingly dismissed. 12. Apart from this, keeping in view the mandate of Section 143 of the N.I. Act, the Trial Court is directed to conclude the proceedings of Criminal Complaint Case No. 1769 of 2023, Kiran Chandra Joshi vs. Ravi Kanyal, pending in the court of Judicial Magistrate, Nainital as expeditiously as possible on day to day hearing basis within a period of 6 months from the date of presentation of certified copy of this order.