Court No. - 44
Case :- APPLICATION U/S 482 No. - 27818 of 2018 Applicant :- Smt. Poonam Singh Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Ken Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Ken Singh, learned counsel for the applicants and the learned A.G.A. for the State.
Learned counsel for the applicant is permitted to amend the prayer clause of the present application by seeking challenge to the entire proceedings of the complaint case, giving rise to the present criminal mic. application under Section 482 Cr.P.C.
The necessary corrections may be made during the course of the day.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 4.12.2000, passed by the Chief Judicial Magistrate, Mirzapur in Complaint Case No. 4366 of 2014, under sections 420, 406, 504, 506 IPC, P.S. Kotwali Shahar, District Mirzapur as well as the entire proceedings of above mentioned complaint case.
The laches in filing the present application have been sufficiently explained in paragraphs 22 to 27 of the affidavit. Accordingly the laches in filing the present application are ignored.
Learned counsel for the applicant invited the attention of the Court to the complaint filed by the opposite party No.2, copy of which is on the record at page 45 of the paper book. On the basis of the averments contained in the complaint, it is submitted that the amount of damages alleged to have been sustained by the opposite party No.2 are on account of self assessment proceedings and not arising out of any liability fixed on the present applicant in any civil proceedings on account of breach of entrustment or otherwise. He, therefore, submits that the dispute as pleaded in the complaint is of a purely civil nature for which the complainant was at liberty to file a civil suit claiming damages. Even otherwise, any dispute arising out of a contract or during the course of business transaction has substantially been held to be of a civil nature and, resorted to criminal proceedings, cannot be made for recovery of money.
Reliance is placed upon the judgement of the Apex Court in the Case of Veer Prakash Sharma vs Anil Kumar Agarwal & Anr reported in 2007 (7) SCC 373 in support of the aforesaid submission.
Learned counsel for the applicant further submits that the present applicant initiated proceedings under section 138 N.I. Act against the opposite party No.2, in which complainant opposite party No.2 was convicted by the Magistrate. The appeal and the revision preferred against the order of the Magistrate convicting the opposite party No.2, have also been dismissed. The present criminal proceedings have been engineered by the opposite party No.2 to wreak vengeance. He, therefore, submits that in view of the judgement of the Apex Court in the case of M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another, 2009(1)JIC 245 (SC), such proceedings cannot be sustained.
On the strength of the aforesaid, learned counsel for the applicant submits that the present criminal proceedings initiated by opposite party no.2 are not only malicious but also amount to an abuse of the process of the Court.
Having heard the learned counsel for the applicants and the learned A.G.A. for the State as well as upon perusal of the facts and circumstances of the case as brought on record, matter requires consideration.
Notice on behalf of opposite party No.1 has been accepted by learned A.G.A.
Issue notice to opposite party no. 2.
All the respondents may file their respective counter affidavits on or before the date fixed in the notice.
List on the date fixed in the notice.
Until further orders of court, further proceedings of above mentioned complaint case, shall remain stayed.
Order Date :- 23.8.2018 Arshad