Court No. - 77
Case :- APPLICATION U/S 482 No. - 44426 of 2019 Applicant :- Akshay Kumar @ Bhola Opposite Party :- State of U.P. and Another Counsel for Applicant :- Krishna Dev Mishra Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicant, Akshay Kumar @ Bhola, with a prayer for quashing of impugned summoning order, dated 30.8.2018, passed by Civil Judge (Senior Division), Fast Track Court, Gautam Buddh Nagar, and, thereby, entire criminal proceeding, in Complaint Case No. 989 of 2017 (Kamal Singh vs. Akshay Kumar @ Bhola), under Sections-420, 323 and 506 of IPC, Police Station-Knowledge Park, Distric- Gautam Buddh Nagar.
Learned counsel for applicant argued that it was a malicious prosecution, wherein, there is misuse of process of law. Applicant has been summoned on the basis of evidence recorded in routine, whereas, no such Committee was ever in existence nor was there any evidence of deposit of money, as alleged, rather, a cheque was given to the brother of the complainant against a loan. Subsequently, said loan was repaid and when cheque was demanded back, it was handed over to the complainant. After alleged dishonour of cheque, no proceeding, under the Negotiable Instrument Act was initiated, rather, this complaint was got filed, wherein, impugned summoning is there. Hence, for avoiding abuse of process of law and for securing ends of justice, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer.
Learned AGA, representing State of U.P., has vehemently opposed this Application.
From very perusal of the statement recorded, under Section 200 of Cr.P.C., it is apparent that Kamal Singh has stated about deposit in the Committee on 5.6.2015 and after its maturity, Rs. Two lakhs and Twenty Five thousand was demanded, repeatedly. Lateron, Akshay Kumar @ Bhola issued a cheque of Oriental Bank of Commerce for Rs.One Lakh and Ten thousand and the remaining was promised to be returned back after some time, but this cheque was dishonoured. When money was demanded back, he assaulted and abused denied of paying back the money. Cleverly, accused, keep assuring the complainant of returning money to ensure that limitation of filing case, under Negotiable Instrument Act ends. As the limitation to file case, under Negotiable Instrument Act ended, this was case for fraud and deceit was filed. Same was the version of the witnesses, examined, by the Magistrate, under Section 202 of Cr.P.C.
Hence, prima facie, impugned summoning order was passed on the basis of evidences collected by the Magistrate.
This Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to embark upon factual matrix because the same is a question, to be gone into, during course of trial, by the Trial court.
Admittedly, the Magistrate is not expected to make a detailed and analytic analysis of evidence, at the time of passing of order, under Section 204 of Cr.P.C., rather, existence of a prma facie case is to be seen at that stage, which was very well there in the present case. Hence, the Magistrate has rightly passed impugned summoning order in accordance with provisions of law.
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".
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.
In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly.
However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of 30 days from today, no coercive action shall be taken against the applicant.
In case, if the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
Order Date :- 17.12.2019 bgs/