The Petition

Petition was filed by Accused under Section 482 of Code of Criminal Procedure against the order passed by Sessions Judge in a Criminal Revision whereby order of Judicial Magistrate First Class of striking off of defense of Accused was affirmed.

Brief Facts

The Petitioner/Accused was facing trial under Section 138 of Negotiable Instruments Act arising out of a private complaint filed by the respondent, who is real brother of the petitioner. The cheque involved in the present matter was allegedly stolen by someone and matter had been reported to the police. After recording of Evidence of the complainant, the present petitioner/Accused, in his DE, had preferred an application to summon the copy of his complaint qua stolen Cheques as well as Roznamcha from Police Station. The Trial Court had allowed the application filed by the petitioner and directed the petitioner to submit the process fee. The witness from the Police was not examined for Four years and finally the trial Court struck off the right of the petitioner to present his defence. Being aggrieved by such an order, petitioner filed a Criminal Revision before the Sessions Judge, , which was dismissed confirming the orders of JMFC. Hence, being aggrieved by the aforesaid orders of revisional Court as well as trial Court, the petition under Section 482 of Cr.P.C. has been filed.

Plea of Accused/Petitioner

Petitioner took a plea that the impugned orders are manifest illegal, arbitrary and contrary to law, therefore, deserve to be set aside. Both the Courts below have not looked into the controversy involved in the matter. It was further submitted that the trial Court has struck off the defence of the petitioner for no fault on the part of the petitioner. The witness was required to be examined for just disposal of the case. The trial Court has arbitrarily struck off the defence of the petitioner, despite the fact that the process fee was regularly deposited by the petitioner. Learned counsel for the petitioner further submitted that the petitioner was being tried for offence under Section 138 of NI Act, therefore for rebuttal of charges leveled against the petitioner, the witness was essential witness to the case.  Under aforesaid facts and circumstances of the case, learned counsel for the petitioner prayed that the orders of the Courts below deserve to be quashed.

Respondent/Complainant’s Plea

Counsel for the respondent opposed the submissions put forth by counsel for the petitioner and submitted that both the Courts below have not committed any error in passing the aforesaid orders. It was further submitted that the petitioner was given ample time to produce his defence from the year 2015 to 2018, despite opportunities given on various dates, the petitioner had not produced the evidence. On account of that, the Court below has struck off the defence of the petitioner as there was malafide intention on the part of the petitioner to linger on the matter. Therefore, it was submitted on behalf of the respondent that the Court below has rightly struck off the defence of the petitioner. Hence, prays for dismissal of present petition filed under Section 482 of Cr.P.C.

Court’s Observations

The Bench while discussing the matter observed,

The powers of High Court under Section 482 of CrPC are partly administrative and partly judicial. The Hon'ble Apex Court in State of Karnataka vs. Muniswami [AIR 1977 SC 1489] held that the section envisages three circumstances in which the inherent jurisdiction may be exercised, namely, "to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice."
The jurisdiction under Section 482 CrPC is discretionary. The Court may depend upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of CrPC. It is true that their powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.
It is also settled law that the inherent power under Section 482 of CrPC has to be exercised for the ends of the justice and should not be arbitrarily exercised to cut short the normal process of a criminal trial.

Conclusion

Bench ruled that,

It is evident that the records called by the petitioner were already destroyed which is reflected from the report submitted by concerning Station House Officer and the conduct of the petitioner is not bonafide, rather is a delaying tactics. Therefore, trial Court has rightly struck off the defence of the Accused and the orders of trial Court have rightly been affirmed by the Revisional Court. Consequently, this petition under Section 482 of Cr.P.C. is hereby dismissed being devoid of any merits and substance.

Coram: Justice Rajeev Kumar Shrivastava
Counsel for Petitioner/Accused: Sh. Atul Gupta
Counsel for Complainant: Sh. Suresh Agarwal
Miscellaneous Criminal Case No. 15275/2018
High Court of MP, Gwalior Bench

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