Jaspal Singh vs Ramesh Thapa and Another

The present petition has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) [corresponding to Section 482 Cr.P.C.] seeking quashing of application No. CRM-818/2024 dated 22.02.2024 (Annexure P-4), filed by respondent No. 1 seeking issuance of directions to the petitioner to return/deposit an amount of ₹12,80,193/-, including ₹5,85,900/- towards interest @ 9% for the period from 02.04.2010 to 02.02.2024, in compliance with order dated 16.12.2023 (Annexure P-3), which order is already under challenge in CRR No. 2835/2024 before the learned Sessions Court, along with all consequential proceedings arising therefrom, on the ground that the said application and the proceedings pursuant thereto are without authority of law and without any enabling provision under the BNSS/Cr.P.C.

The facts of the case, in brief, are that respondent No.1 had obtained financial assistance of ₹2,20,000/- from M/s J.R. Finance, of which the petitioner is the Managing Partner, in the year 2009. In discharge of the said liability, respondent No.1 issued a cheque in favour of the petitioner. Upon dishonour of the said cheque, a complaint under Section 138 of the Negotiable Instruments Act, 1881 was instituted against respondent No.1. During the pendency of the said complaint, respondent No.1 was declared a proclaimed offender vide order dated 09.10.2009 and his employer, Rail Coach Factory, was directed to attach a portion of his salary towards satisfaction of the amount due.

Pursuant to the said order, deductions of ₹4,650/- per month were made from the salary of respondent No.1. Subsequently, the parties amicably settled the matter on 29.05.2010 for a total amount of ₹36,000/- and the complaint was ultimately dismissed as withdrawn on 24.09.2011. However, allegedly due to non-communication of the settlement, the salary deductions continued from 02.04.2010 till 02.10.2020 and the deducted amounts were credited to the account of the petitioner.

Upon coming to know about the continued deductions, the petitioner approached the learned JMIC, Jalandhar, seeking release of the attached salary, whereupon vide order dated 30.09.2020, a release warrant was issued. Thereafter, respondent No.1 issued a legal notice dated 01.10.2020 demanding refund of ₹11,39,250/- along with interest @ 18% and subsequently filed Complaint Case No. NACT/2703/2020 before the learned JMIC, Jalandhar seeking recovery of the said amount.

Vide order dated 16.12.2023, the learned JMIC directed the petitioner to refund ₹5,85,900/- along with interest @ 9% per annum, while relying upon Section 72 of the Indian Contract Act, 1872. The said order has been challenged by the petitioner by way of CRR No.74/2024 before the learned Sessions Court and the same is stated to be pending adjudication.

During the pendency of the said revision, respondent No.1 filed CRM-818/2024 before the learned JMIC seeking recovery of ₹12,80,193/-, including interest calculated on the aforesaid amount. The petitioner opposed the said proceedings and sought stay thereof, contending, inter alia, that the criminal Court had no jurisdiction to entertain an independent claim for recovery of money after the original complaint under Section 138 of the Negotiable Instruments Act had already been compromised and withdrawn. However, the objections and applications for stay were dismissed and coercive recovery proceedings were thereafter initiated.

Ultimately, after the attachment warrant issued against the petitioner's bank account was returned with a report of zero balance and respondent No.1 failed to furnish particulars of the petitioner's properties despite opportunities, an application was moved seeking issuance of warrants of arrest against the petitioner. Vide order dated 19.05.2026, the learned JMIC dismissed the objections of the petitioner and issued conditional warrants of arrest against him. Aggrieved thereof, the petitioner has approached this Court by way of the present petition seeking quashing of CRM-818/2024 and all subsequent proceedings arising therefrom.

Learned counsel for the petitioner submits that despite the pendency of the aforesaid criminal revision petition, the learned Trial Magistrate has proceeded further with the implementation/execution of the order dated 16.12.2023. It is submitted that the petitioner has been opposing the said proceedings on the ground that the very order sought to be implemented is already under challenge before the learned Revisional Court. It is further submitted that, during the pendency of the revision petition, the petitioner has moved an appropriate application seeking stay of the operation of the order dated 16.12.2023 as well as the consequential proceedings before the learned Additional Sessions Judge, Jalandhar.

Learned counsel further submits that the said application seeking stay has not yet been considered and decided by the learned Revisional Court. In the meantime, the learned Trial Magistrate has proceeded with the recovery proceedings and has ultimately issued conditional warrants of arrest against the petitioner vide order dated 19.05.2026 (Annexure P-13), for securing compliance with the order dated 16.12.2023. It is contended that the continuation of coercive proceedings, particularly issuance of conditional warrants of arrest, before the application seeking stay of the very order under challenge is considered by the Revisional Court, is causing serious prejudice to the petitioner.

This Court is of the considered view that, since the legality and correctness of the order dated 16.12.2023 is already the subject matter of challenge before the learned Additional Sessions Judge, Jalandhar, and an application seeking stay of the operation thereof is stated to be pending consideration before the said Court, it would be appropriate that the said application is considered and decided expeditiously. This Court, therefore, does not deem it appropriate to examine the merits of the challenge to the order dated 16.12.2023 in the present proceedings at this stage.

Accordingly, the present petition is disposed of with a direction to the learned Additional Sessions Judge, Jalandhar, before whom the criminal revision petition is pending, to consider and decide the application seeking stay of the operation of the order dated 16.12.2023, filed by the petitioner, preferably within a period of one month from the date of receipt of a certified copy of this order, in accordance with law.

In the meanwhile, and till the aforesaid application is decided by the learned Revisional Court, the operation of the order dated 19.05.2026 (Annexure P-13), whereby conditional warrants of arrest have been issued against the petitioner for compliance of the order dated 16.12.2023, shall remain stayed.

It is clarified that this Court has not expressed any opinion on the merits of the criminal revision petition or on the merits of the application seeking stay, and the learned Additional Sessions Judge, Jalandhar, shall decide the same independently, in accordance with law.