M/s. Shiwalik Co-operative House Building Society Ltd. vs Raj Kumar and Others

Mansoor Ahmad Mir, Actg. C.J.

By the medium of this petition, the petitioner has questioned the order, dated 6th November, 2008, passed by the Judicial Magistrate Ist Class, Nalagarh, District Solan, H.P. in Criminal Complaint No. 100/2 of 2004, titled as M/s. Shiwalik Co-operative House Building Society Ltd. versus Raj Kumar and others, read with order passed by the Sessions Judge, Solan, dated 14th May, 2010, on the ground that both the orders are abuse of process of law. It appears that the petitioner/complainant has filed a complaint before the Magistrate for the commission of offence punishable under Sections 406, 408, 409, 420, 468 and 120B read with Section 34 of the Indian Penal Code, (for short, IPC). After examining the complaint and preliminary statements, the trial Court issued process against the alleged accused/respondents for the commission of offence punishable under Sections 420, 406 and 120B of the IPC, meaning thereby that no process was issued against the respondents for the commission of offence punishable under Sections 408, 409 and 468 of the IPC. The said order has attained finality since the petitioner has not questioned the same.

After examining the record, complainant evidence and other material, the trial Court came to the conclusion that the matter in question is a civil dispute and does not constitute the commission of offence under Sections 406, 420 and 120B of the IPC and accordingly, discharged the respondents.

Feeling aggrieved, the petitioner-Society has questioned the said order passed by the learned trial Court in appeal. I wonder how the appeal was entertained since the order, on the face of it, is a discharge order and is revisable and no appeal lies against a discharge order in terms of mandate of process contained in the Code of Criminal Procedure. Be that as it may.

During the pendency of this petition, respondent No. 1 has passed away against whom main allegation was leveled by the complainant. Thus, the proceedings against the said respondent stand abated.

I have gone through the order of the trial Court. No case is made out for invoking the jurisdiction of this Court in terms of Section 482 of the Code of Criminal Procedure, which is to be exercised in the rarest of rare cases and sparingly. Therefore, the petition is dismissed. However, the dismissal of the petition shall not come in the way of the petitioner to seek appropriate remedy permissible under law. The petition is disposed of accordingly.