Court No. - 83
Case :- APPLICATION U/S 482 No. - 8285 of 2021 Applicant :- Gaurav Mittal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Alok Dubey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Alok Dubey, learned counsel for applicant and learned AGA for the State.
Perused the record.
This application under Section 482 Cr.P.C. has been filed challenging summoning order dated 24.1.2021 passed by C.J.M., Farrukhabad in Complaint Case No. 5120 of 2019 (Sikandar Beg Vs. Gaurav Mittal) under Section 138 of N.I. Act, P.S. Kotwali Farrukhabad, District Farrukhabad as well as entire proceedings of above mentioned complaint case.
Learned counsel for applicant contends that summoning order dated 24.1.2021 passed by court below is manifestly illegal and without jurisdiction. He further contends that the disputed cheque has not been issued by applicant. Signature of applicant on the disputed cheque are disputed by applicant. It is also contended that disputed cheque was issued by applicant on behalf of company however, the company has not been impleaded as a party to the complaint. Since the company has not been impleaded as party to the complaint present criminal proceedings are not maintainable and, therefore, the impugned summoning order passed by court below is also illegal. He further contends that entire proceedings of above mentioned complaint case being illegal are therefore liable to be quashed by this Court.
Per contra learned AGA has opposed this application. He contends that the submission urged by learned counsel for applicant do not find mention in the affidavit filed in support of present application. Applicant has tried to improve upon his case by filing supplementary affidavit. It is thus established that applicant has taken contradictory pleas before this Court. Moreover, submission urged by learned counsel for applicant relate to the disputed defence of applicant which cannot be adjudicated upon by this Court. Issues raised before this Court can also be agitated before court below. Once the legal notice as contemplated under Negotiable Instruments Act has been served upon applicant he was duty bound to honour the same. However, instead of doing so applicant has approached this Court. Learned AGA thus submits no issue regarding maintainability/jurisdiction of court to proceed with the complaint is involved in present application and, therefore, same is liable to be dismissed by this Court.
From the perusal of impugned summoning order, the Court finds that the court upon consideration of material on record has summoned present applicant in above mentioned complaint case. At the time of summoning an accused in a complaint case the Court is not required to hold a mini trial. At this stage reference be made to paragraph 37 of the judgment of Supreme Court in Nupur Talwar Vs. Central Bureau of Investigation and Another, 2012 (11) SCC 465, wherein following has been observed in paragraph- 37.
"37. The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in Cahndra Deo vs. Prokash Chandra Bose lias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was observed as under :
"(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under Section 202 has been considered. Amongst those decisions are : Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125; Emperor v. J.A. Finan, AIR 1931 Bom 524 andBaidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."
When confronted with above, learned counsel for applicants could not over come the same.
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence to record a finding one way or the other. Such an exercise can be undertaken only by trial court upon trial of above mentioned complaint case itself. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
In view of above, application fails and is liable to be dismissed. It is accordingly dismissed.
Order Date :- 27.9.2021 Arshad