Purushottam Sultania vs State of U.P. and Another

Arvind K. Tripathi, J.—Heard learned Counsel for the applicant, learned A.G.A. and perused the record.

The present criminal misc. application u/s 482,Code of Criminal Procedure has been filed with a prayer to direct the Magistrate not to give effect to the non-bailable warrant which has been issued on 26.2.2009, 1.5.2009 and 8.6.2009 issued in Case No. 1013 of 2008 and 1037 of 2008. Further prayer is to issue direction for deciding the discharge application of the applicant. Apart from that alternative oral request was made that matter might be referred to the Mediation Centre.

Counsel for the applicant submitted that the proceeding is purely of civil nature, hence, the criminal prosecution was not maintainable. He relied the judgment of Hon''ble Supreme Court in the case of Murari Lal Gupta v. Gopi Singh 2005 (13) SCC 699 . Earlier Criminal Misc. Application No. 3405 of 2009 was filed with the prayer for quashing the summoning order dated 18.11.2008, which was finally disposed of on 24.2.2009. He contended that the second application u/s 482, Code of Criminal Procedure is maintainable in view of the judgment of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, He contended that since the principle of res judicata is not applicable in the criminal prosecution hence the second application u/s 482, Code of Criminal Procedure is not barred.

The objection of the counsel for opposite party No. 2 is that second application is not maintainable, and prima facie offence is made out hence, contention of the counsel is against the law laid down by the Apex Court.

Counsel for the applicant contended that order in the earlier application u/s 482, Code of Criminal Procedure was passed in the presence of opposite party No. 2 on 24.2.2009 and there was observation for filing of the discharge application before the trial Court and if the application was filed within a period of one month a direction was for consideration of the same within two months after filing of the discharge application. However, on 26.2.2009 non-bailable warrant was issued, hence, in view of the fact the impugned order issuing the non-bailable warrant is liable to be quashed and no coercive step should be taken against the applicant till disposal of discharge application.

Counsel for the opposite party No. 2 submitted that in view of the fact, earlier application u/s 482, Code of Criminal Procedure challenging the summoning order was finally disposed of, hence, second petition is not maintainable. He further contended that discharge application has already been decided and same is not pending.

As far as judgment relied by counsel for the applicant Murari Lal Gupta v. Gopi Singh to the effect that present case is purely of civil nature is concerned, the same is not required to be considered again. Since earlier summoning order was challenged in Criminal Misc. Application No. 3405 of 2009, in which prayer for quashing of the summoning was refused. It was observed that looking in the facts of the case it could not be said that no offence was made out against the applicant. It was further observed that all the section related to the disputed fact which could not be adjudicated by the Court u/s 482, Code of Criminal Procedure as on that stage only prima facie case was to be seen in the light of the law laid down by Apex Court in the case of R.P. Kapoor v. State of Punjab. Apart from that other cases of the Apex Court were also considered. It was provided that, applicant was free to move discharge application within a month, with direction to dispose of the discharge application within two months from the date of filing of discharge application. Further direction was that if applicant appeared and surrendered before the Court below within 30 days that should be considered in the light of Amrawati and Anr. v. State of U.P. It was directed that for a period of 30 days no coercive action should be taken against the applicant. Applicant has not disclosed when the order dated 24.2.2009, passed by the High Court was placed before the trial Court. Application was filed on 26.3.2009 though the certified copy was prepared on 26.2.2009.

However, even on merit in the present case as per allegation even a single penny was not paid. It appears that since very inception the intention was dishonest and fraudulent. Neither the goods were returned nor payment was made, even after notice. Hence, civil proceeding as well as criminal prosecution both are maintainable.

In case of "S.M.S. Pharmaceuticals Ltd." the fact of the case was that in previous order High Court gave liberty to agitate the matter once again. Hence, it was held by Hon''ble Supreme Court, "the High Court not completely denuded of its power to exercise inherent jurisdiction for the second time".

Ordinarily the inherent jurisdiction u/s 482, Code of Criminal Procedure cannot be invoked to override bar review provided u/s 362, Code of Criminal Procedure except in exceptional case like the aforesaid case before the Apex Court. In view of the fact of that case before the Apex Court the principle of res judicata was not attracted.

In view of the facts since argument of the applicant has already been considered on merit in earlier application, hence, second application u/s 482, Code of Criminal Procedure to review the aforesaid earlier order passed by the High Court, is not maintainable. In the present case since the summoning order was issued and if the applicant failed to appear or failed to file copy of the order dated 24.2.2009, passed by the High Court then there was no option, before the trial Court, but to issue non-bailable warrant. Hence, in view of the facts and circumstances of the present case, no interference is called for u/s 482, Code of Criminal Procedure Oral prayer was made to refer the matter to Mediation Centre. If parties want to settle the matter and compromise application is moved before the Court concerned, the same is expected to be considered expeditiously in accordance with law.

Accordingly the application is rejected.