Court No. - 44
Case :- APPLICATION U/S 482 No. - 27857 of 2018 Applicant :- Vijay Kumar And 2 Others Opposite Party :- State Of Up And Another Counsel for Applicant :- Mithilesh Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Mithlesh Kumar Tiwari, 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 16th January, 2018 passed by the Additional Chief Judicial Magistrate, Court No. 9, Varanasi in Complaint Case No. 3173 of 2017 (Shrawan Kumar Gupta vs. Vijay Kumar & Others), under Section 406 I.P.C., Police Station Cantt., District Varanasi as well as the entire proceedings of the above mentioned complaint case.
Learned counsel for the applicants submits that initially M/s J.K. Submersible Pumps through its partner Vijay Kumar, applicant no.1herein had filed Criminal Complaint Case No. 241 of 2016 (M/s J.K.Submersible Pumps, village Kalwhari District Karnal through its partner Vijay Kumar against Shrawan Gupta, Sole Proprietor of M/s Krishna Diesels, S8/314, A/38, Pandey Pur Khujri, Varanasi (J.P.), under Section 138 of the Negotiable Instruments Act. The said case was instituted on 9th May, 2016 and it appears that subsequently, the said case has been renumbered as Complaint Case No. 241 of 2018. The aforesaid case has been allowed by means of the judgment and order dated 27th April, 2018. As a counter blast to the aforesaid proceedings and subsequent to the institution of the aforesaid complaint case, the opposite party no.2 filed the above mentioned complaint case under Section 406 I.P.C. by means of the complaint dated 29th June, 2017, a copy of which is on the record as Annexure-4 to the affidavit filed in support of the present application, which is subsequent to the filing of the aforesaid complaint case under Section 138 of the Negotiable Instruments Act. Upon a parallel being drawn in between the judgment rendered in the complaint case under Section 138 N.I. Act referred to above and the allegations made in the above mentioned complaint case under Section 406 I.P.C., it is apparent that all the allegations which have been alleged in the above mentioned complaint case under Section 406 I.P.C. are conspicuous by their absence in the defence set up by the opposite party no.2 in the complaint case under Section 138 N.I. Act filed by the applicant no.1.
On the aforesaid factual premise, it is urged by the learned counsel for the applicants that the present criminal proceedings initiated by the opposite party no.2 are not only malicious but also amount to an abuse of the process of the Court.
Having considered the submissions advanced by learned counsel for the applicants, learned A.G.A. for the State and upon perusal of the material on the record, matter requires consideration.
Issue notice to opposite party No.2, calling upon him to file counter affidavit.
Learned A.G.A. has accepted notice on behalf of the opposite party no.2. Both the opposite parties may file their respective counter affidavits by the date fixed in the notice.
List on the date fixed in the notice.
Till the next date of listing, further proceedings of above mentioned complaint case, shall remain stayed.
(Rajeev Misra, J.) Order Date :- 23.8.2018 Sushil/-