Shubhash Tyagi vs S. C. Jain

Ravindra Maithani, J

Petitioner seeks setting aside the order dated 13.07.2010, passed in Complaint Case No. 2235 of 2010, S. C. Jain vs. Subhash Tyagi, by the Court of

First Additional Civil Judge (Junior Division)/JM, Roorkee, (new number 2197 of 2011) (for short “the caseâ€) and order dated 18.08.2011, passed

in Criminal Revision No. 381 of 2010, Subhash Tyagi vs. State of Uttarakhand and another by the court of 3rd FTC/Additional District and Sessions

Judge, Haridwar (for short “the revisionâ€). In fact, by the impugned order dated 13.07.2010, the petitioner has been summoned to answer

accusation under Section 406 IPC. This order was challenged in the revision, which was dismissed.

Heard learned counsel for the parties through video conferencing.

Facts, necessary for the disposal of the petition briefly stated are as hereunder:-

Petitioner and original respondent-S.C. Jain (now after the death of original respondent he has been substituted by Smt. Kiran Lata Jain) entered into

an agreement with regard to some construction work. After completion of the construction work, as per the respondent, when security amount was

not released, he sent notices, but, to no avail. Thereafter, the respondent filed an application under Section 156 (3) of the Code in the court of Judicial

Magistrate, Roorkee, District Haridwar, which was registered as miscellaneous application no. 165 of 2010, S.C. Jain v. Subhash Tyagi and ors., in the

court of JM Roorkee, District Haridwar (for short “the miscellaneous applicationâ€). The miscellaneous application was rejected on 15.04.2010 on

the ground that the dispute is civil in nature. This order dated 15.04.2010 passed in miscellaneous application was challenged in Criminal Revision No.

143 of 2010, S.C. Jain Vs. State of Uttarakand and Others in the court of Additional District and Sessions Judge, Roorkee, District Haridwar (for

short â€​the First Revisionâ€​). The First Revision was dismissed on 01.06.2010.

Respondent did not stop here, he put the clock back and now before another court, he filed a complaint on the same set of facts on 10.06.2010,

which is basis of the case. It is in this case after enquiry under Sections 200 and 202 of the Code, on

13.07.2010, the petitioner was summoned. This summoning order was challenged by the petitioner in the revision which was also dismissed. It is

impugned herein.

Learned Senior counsel for the petitioner would submit that parties had a contract with an arbitration clause, it was never invoked. The respondent

is not clear as to what is the amount due to him because he gives different amounts in different proceedings. Once, application under Section 156 (3)

of the Code of the respondent was dismissed, he filed complaint without disclosing the dismissal of application under Section 156 (3) of the Code. It is

argued that, in fact, no case is made out.

On behalf of the private respondent, learned counsel would admit that parties had an agreement executed between them with an arbitration clause,

but, he would argue that the arbitration clause was with regard to the work and not payment. It is argued that in the instant case since the security

amount was not released, it makes out a case under Section 406 IPC. Learned counsel would argue that, in fact, the petitioner has to refund the

security to respondent, which he failed.

Taking cognizance is a judicious act, which requires some conscious deliberations. Law is settled on the point that a person cannot be summoned

merely on the basis of some statements of the witnesses. Though minute scrutiny of the evidence at the stage of cognizance is not expected of, but

then, the court should be cautious of the fact that once summoned a person has to undergo the rigmarole of a trial which, at time takes considerable

time to conclude.

In the instant case, the respondent has been concealing the things; he moved an application under Section 156 (3) of the Code which was dismissed

by the court of Judicial Magistrate. He filed first revision which was also dismissed and it was done on 01.06.2010. What the respondent did was he

chose another route and filed a complaint before another court, produced two witnesses and the cognizance order was passed by the learned court

below. The respondent did not reveal in his complaint about the factum of agreement or arbitration in it. The respondent did not reveal in the complaint

the factum of his earlier application under Section 156 (3) of the Code, having being dismissed on the ground that the dispute is purely civil in nature.

He also concealed the fact that the first revision preferred against the order passed in the miscellaneous case had also been dismissed on 01.06.2010.

Big concealments were made to obtain the cognizance order by the respondent.

This is a procedural aspect. What is the merit in the case? Admittedly, parties entered into an agreement with regard to some construction work. In

the petition, in para 9, 10 and 11, petitioner writes about the notices given by the respondent and reply by him. In para 14 of his counter affidavit, the

respondent did not deny them, which shows that the amount which was due to the respondent was varied according to the two notices of the

respondent himself. It is admitted to the respondent in para 14 of his counter affidavit that the reply notice was given by the petitioner on 15.03.2010,

which is Annexure No. 10 to the petition, which reveals that, in fact, according to the petitioner, it was the respondent who was to pay certain amount

to the petitioner. This is definitely a civil dispute. Petitioner also concealed exchange of these notices in his complaint. He simply writes in the

complaint that even after six months of the contract, he was not refunded the security money.

This court is of the view that dispute between the parties is, in fact, purely civil in nature. The Respondent played fraud with the court, concealed

material facts in the complaint and that is how the cognizance order was issued. Had the facts been brought to the notice, perhaps, the things would

have been different. Therefore, this court is of the view that the impugned orders deserve to be set-aside and the petition allowed.

The petition is allowed. Both the impugned orders are set-aside.