Court No. - 44
Case :- APPLICATION U/S 482 No. - 18802 of 2018 Applicant :- Sushil Rai Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Uma Shankar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Ashok Kumar Singh, learned counsel for the applicants and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 25.11.2017, passed by the Additional Chief Judicial Magistrate Court No.12, Azamgarh in Complaint Case No. 105 of 2015 (Amjad Vs. Sushil Rai), under Section 138 N.I. Act, P.S. Kotwali, District Azamgarh as well as the entire proceedings of the above mentioned complaint case. The applicant has also challenged the order dated 25.11.2017 passed by the Additional Chief Judicial Magistrate, Court No. 12 Azamgarh, whereby the application dated 23.10.2017 filed by the applicant has been rejected and also the order dated 7.5.2018 passed by the Sessions Judge in Criminal Revision No. 249 of 2017 (Sushil Kumar Rai Vs. State of U.P.) dismissing the criminal revision filed by the applicant in challenge to the order dated 25.11.2017.
From the record, it appears that the in respect of the amount payable under the disputed cheque, the opposite party no.2 initiated criminal proceedings against the applicant by lodging F.I.R. dated 23.12.2014, which was registered as Case Crime No. 329 of 2014, under sections 406, 420, 506 IPC, P.S. Jiyanpur, District Azamgarh. Upon completion of the investigation undertaken pursuant to the aforesaid F.I.R., the Investigating Officer submitted a charge sheet before the court below, upon which congnizance was taken. As a consequence of the aforesaid, criminal case No. 329 of 2014, under sections 406, 420, 506 came into existence. The same is said to be pending. During the pendency of the aforesaid criminal case, the opposite party no.2 filed a complaint dated 19.2.2015 under section 138 N.I. Act, which was registered as Complaint Case No. 105 of 2015 (Amjad Vs. Sushil Kumar). The applicant was summoned in the aforesaid complaint case vide summonig order dated 23.7.2016. Feeling aggrieved by the summoning order dated 23.7.2016 as well as the entire proceedings of the above mentioned complaint case, the applicant filed criminal misc. application No. 40349 of 2016 (Sushil Rai Vs. State of U.P. and another), which was disposed of finally vide order dated 4.1.2017. The order dated 4.1.2017, passed by this court is reproduced herein under:-
"Heard Sri Ashutosh Kumar Tripathi, learned counsel for the applicant and learned A.G.A. for the State as also perused the material on records.
The present application under Section 482 Cr.P.C. has been filed for quashing of the further proceeding in Complaint Case No. 105 of 2015 (Amjad Khan Vs. Sushil Rai), under Section 138 of N.I.Act, pending against the applicant before the learned Additional Chief Judicial Magistrate, Court No.12, Azamgarh and further prayed to stay the summoning order dated 23.07.2016 and bailable warrant dated 27.10.2016 passed in Criminal Case No. 105 of 2015 (Amjad Khan Vs. Sushil Rai) by the Addl. Chief Judicial Magistrate, Court No.12, Azamgarh.
The legality and correctness of aforesaid proceedings have been challenged by the applicant mainly on the ground that on the same set of facts and circumstances, two cases have been initiated against the applicant by opposite party No.2 one as a complaint case and the other by lodging an F.I.R. against the applicant bearing Case Crime No. 329 of 2014, under Sections 406, 419, 420 and 506 IPC, Police Station Jiyanpur, District Azamgarh.
The submission of the learned counsel for the applicants is that as per well settled legal position, two cases cannot be initiated against a person on the basis of the same set of facts. Learned counsel has submitted that the opposite party No.2 has filed the instant complaint case on 19.02.2015, after lodging an F.I.R. against the applicant and others under Sections 406, 419, 420 and 506 IPC, Police Station Jiyanpur, District Azamgarh on 23,12,2014 with similar allegations as in that of the police case, thus, misusing the process of court, hence, the entire proceedings of the instant complaint case be quashed.
Learned A.G.A. has vehemently opposed the application and submitted that there is no illegality in the proceedings/order in question.
I have gone through the submissions made at bar and perused the material brought on record by the parties.
Section 210 Cr.P.C. prescribes the procedure to be followed when there is a complaint case and a police investigation in respect of the same offence.
Section 210 Cr.P.C. is reproduced below:
"210.Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-(1) When in a case instituted otherwise then on a police report hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
In view of the clear legal provision as quoted above, the entire proceedings of a criminal case cannot be quashed only on the ground that two proceedings have been initiated against the applicant on the same set of facts.
Therefore, the prayer for quashing of the proceedings of the instant complaint case as well as staying of impugned summoning order and order regarding issuance of bailable warrant is refused accordingly.
However, the applicant is at liberty to approach the concerned court below by filing an application under Section 210 Cr.P.C. in the matter and in case the same is filed, the learned court below is directed to decide the said application by giving opportunity of hearing to the parties concerned and pass a reasoned order, in accordance with the procedure prescribed under Section 210 Cr.P.C., as expeditiously as possible, without granting unnecessary adjournment to either of the parties.
The application U/s 482 Cr.P.C. is accordingly disposed of."
In compliance of the order dated 4.1.2017, passed by this court, the applicant filed the an application dated 7.2.2017 in terms of Section 210 Cr.P.C. This application filed by the applicant came to be rejected by the Magistrate vide order 25.11.2017. Feeling aggrieved by the order dated 25.11.2017, the applicant filed a criminal revision, which was dismissed vide order dated 7.5.2018. Thus, aggrieved by the order dated 7.5.2018, passed by the revisional court, the order dated 4.1.2017, passed by the Magistrate, as well as the entire proceedings of the above mentioned complaint case, the Applicant has now approached this court, by means of the present criminal misc. application.
Learned counsel for the applicant submits that the order dated 25.11.2017 passed by the trial court, rejecting the application dated 7.2.2017 in terms of section 210 Cr.P.C. filed by the applicant, is manifestly illegal. The Trial Court has recorded a vague finding in the impugned order to carve a distinction for the non applicability of Section 210 Cr.P.C. in the present case. He, further, submits that the dispute between the parties originates out of the disputed cheque and therefore, applying the theory of pith and substance of the allegations made in the complaint under Section 138 N.I. Act as well as the F.I.R. it is apparent that they are almost the same. He, further submits that section 4 Cr.P.C. creates an exception. For better appreciation of the submissions urged by the learned counsel for the applicant, it is appropriate to have the provisions of the Section 4 Cr.P.C., which is reproduced herein below:-
"4. Trial of offences under the Indian Penal Code and other laws.
(1) All offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
Subsection 2 of Section 4 Cr.P.C. clearly provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The effect of the same will be that the provisions of the special enactment shall take precedence over the provisions of Cr.P.C. for the simple reason that the special will over right the general. Therefore, applying the aforesaid in the present case, the provisions as the Negotiable Instruments Act shall take precedence over the provisions of the Code of Criminal Procedure in so far as the Complaint Case No. 105 of 2015 (Amjad Vs. Sushil Kumar) is concerned. It may also be noticed that the Apex Court in the case of Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao, reported in (2011) 2 SCC 703 has categorically held that in case the person has been convicted under Section 138 N.I. Act, he cannot be convicted under section 420 IPC on the same facts as the same is barred by section 300 IPC. The Trial Court court nor the revisional court have considered this aspect of the matter nor they have considered the prayer of the applicant with regard to the analogous situation that will emerge on account of segregated trials of the above mentioned complaint case as well as the State Case.
A perusal of the impugned order dated 25.11.2017 passed by the Magistrate will go to show that the Magistrate has recorded a categorical finding that the dispute between the parties is regarding the dishonour of a cheque. Once this finding was recorded by the Magistrate, it was not open for him to refuse the consolidation of both the cases. The Magistrate ought to have adopted a practical approach in view of the law as noticed herein above.
In view of the discussions made herein above, the applicant has made out a case for the grant of an interim order.
Issue notice to the opposite party No.2, calling upon him to file counter affidavit. The said counter affidavit may be filed within a period of six weeks. The applicant will have two weeks thereafter to file rejoinder affidavit.
List after the expiry of the aforesaid period.
Until further orders, further proceedings of the above mentioned complaint case shall remain stayed.
Order Date :- 29.5.2018 Arshad