Riya Electronics vs The State of U.P.

Yogendra Kumar Sangal, J.—This petition has been filed by the accused in complaint Case No. 164/08 New Modern Machinery Store v. Riya Electronics against the order dated 30.08.2008 passed by learned Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 2, Unnao. By the impugned judgment and order, learned Magistrate had summoned the accused person-Petitioner to face the trial for the offence u/s 138 Negotiable Instruments Act.

Heard learned Counsel for the applicant-Petitioner as well as learned Additional Government Advocate and perused the record.

Notice was issued to the Respondent No. 2 who put in his appearance and sought time to file counter affidavit, but no counter affidavit has been filed in the matter. No one is also present on behalf of the Respondent No. 2.

As per case of the applicant-Petitioner that Petitioner and Respondent No. 2 entered into an oral agreement for the sale and purchase of the electronic items on the credit of 45 days. A condition was imposed by the Respondent No. 2 that as a security of the money Petitioner has to give a blank cheque undated by putting his signature to the opposite party No. 2 and under that agreement Cheque No. 745505 was given by the Petitioner to the Respondent No. 2. Later on, Petitioner started to purchase some electronic goods from another dealer and when the Respondent No. 2 came to know about the same he misused the blank cheque which was under his custody and presented the same for encashment in the bank which was dishonoured by the bank so a complaint u/s 138 of Negotiable Instruments Act and u/s 420 IPC has been filed against the Petitioner with wrong facts. Learned Counsel for the Petitioner-applicant further argued that it is not mentioned in the complaint that what goods were purchase by the Petitioner from his firm under the aforesaid cheque. The learned trial court has misread the oral and documentary evidence and proceedings of the complaint case are clear cut abuse of process of law, as such, the same are liable to be dismissed.

On the other hand, learned AGA had supported the order passed by learned Magstrate saying that there is no illegality, impropriety and invalidity in the impugned order. It was further argued that alternative opportunity was available to the Petitioner for filing revision against the impugned order before the learned Session Judge of district concerned but without showing any cause why this opportunity was not availed by the Petitioner and by misusing the process of the court, this petition has been filed. 6. At the time of argument, learned Counsel for the Petitioner failed to explain why the impugned order passed by learned Magistrate was not challenged by the accused-Petitioner in revision before the competent court. In inherent jurisdiction of the High Court u/s 482 Code of Criminal Procedure though wide but has to be exercised sparingly, carefully and with caution and only when it is justified by the test of specifically laid down in the statue itself. It is also established law that power u/s 482 Code of Criminal Procedure is not to be restored if there is specific provision in the Code the redressal of the grievance of the aggrieved party. Further the order was passed by the learned Magistrate on 20.08.2008 and this petition was filed in January, 2009 with great delay. It is correct that no limitation is provided for the petition u/s 482 Code of Criminal Procedure, nevertheless petition is to be filed within a reasonable time. Hence, this petition also suffers from vires of delay and latches.

The contention of the counsel for the applicant-Petitioner is that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purpose of harassment. He also pointed out certain documents and statements in support of his contention.

From the perusal of the material on record and looking into the facts of the case, it cannot be said that no offence is made out against the applicant-Petitioner. All the submissions made at bar which relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Code of Criminal Procedure. At this stage only a prima-facie case is to be seen in the light of law laid down by the Hon''ble Apex Court in the case R.P. Kapur Vs. The State of Punjab, as well as State of Haryana v. Bhajan Lal reported in 1992 SCC 426. There may be some defence of the accused, but it cannot be considered at this stage. It can only be seen at the proper time and stage in the proceedings of the trial court after evidence if any adduced in defence by the accused-Petitioner and something comes out in cross-examination in the statement of the complaint witnesses. There may be some illegality in the notice and also there may be defect in the complaint but the accused Petitioner is free to raise these pleas before the trial court during the trial and trial court is bound to consider these pleas of the accused at the time of final judgment in the case.

In these circumstances, I do not find any ground for interference in the impugned order passed by the trial court. Petition has no force and is liable to be dismissed. Accordingly petition u/s 482 Code of Criminal Procedure is hereby dismissed. Inform the trial court to proceed further in the matter according to law.