M/S Ensemble Furniture Solutions ... vs State Of U.P. And Another
2011 Latest Caselaw 6630 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 50
 
					RESERVED
 
Case :- APPLICATION U/S 482 No. - 22642 of 2009
 
Petitioner :- M/S. Ensemble Furniture Solutions Pvt. Ltd. & Another
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Shishir Tandon
 
Respondent Counsel :- Govt. Advocate
 
Hon'ble Naheed Ara Moonis,J.

Heard Shri Anoop Trivedi, the learned counsel for the applicants, Shri M. K. Gupta, the learned counsel appearing on behalf of opposite party no.2, the learned AGA for the State and perused the record.

The instant application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the summoning order dated 9.4.2009 as well as entire proceedings of complaint case no.872 of 2009, M/s. Marino Industries Ltd. Vs. M/s. Ensemble Furniture Solutions Pvt. Ltd., under Section 138 of the Negotiable Instruments Act, P.S. Hapur Kotwali, District Ghaziabad, pending in the court of learned Additional Chief Judicial Magistrate, Hapur, District Ghaziabad.

The question involved in the instant petition is with regard to the territorial jurisdiction of the court at District Ghaziabad to try the offence under Section 138 of the Negotiable Instruments Act.

In order to determine the question of jurisdiction as raised by the learned counsel for the applicants, the brief facts are necessary to be given.

The opposite party no.2, M/s. Marino Industries Ltd. having its registered office at Village Acheja, Hapur, District Ghaziabad, whose Manager is Shri T. R. Sharma. The said company is engaged in the manufacturing of laminated goods, while the applicant no.1, M/s. Ensemble Furniture Solutions Pvt. Ltd. having its registered office at B-01, Paragon Center, P. B. Marg, Worli, Mumbai-13. The applicant no.2 is the Director of the aforesaid company.

Certain goods were supplied by the company of the opposite party no.2 which was received by the company of the applicants without any objection. In respect of the goods supplied to the applicants' company total amount of Rs.712,390/- was due against the applicants. In this regard the applicant no.1 had issued a cheque no.492537 dated 1.1.2009 of A.B.N. Amro Bank, Mumbai was given at the complainant's office situated at Village Acheja, Hapur, District Ghaziabad. The complainant submitted the said cheque in his account at the Axis Bank, New Delhi on 1.1.2009. The said cheque was dishonoured with the endorsement of insufficient funds on 5.1.2009. The cheque was dishonoured without encashment, the complainant sent a legal notice through his Advocate which was duly received by the applicant. Even after expiry of fifteen days of notice of service the applicants' company failed to make the payment and as such the complaint was filed on 17.2.2009 before the court of Additional Chief Judicial Magistrate, Hapur with a prayer to prosecute the applicants who have committed an offence under Section 138 N. I. Act. The case was registered as complaint case no.867 of 2009, thereafter despite service of notice when the applicant failed to appear, non bailable warrants were issued against them by order dated 9.4.2009.

It is vehemently argued by the learned counsel for the applicants that summoning order suffers from manifest error as the learned Magistrate had no jurisdiction to pass the order. It is evident from the complaint itself that the cheque was issued from Mumbai and has been deposited in New Delhi. No part of cause of action has been mentioned in the complaint which took place within the territorial jurisdiction of District Court Hapur at Ghaziabad. Notice prior to filing complaint has also been delivered at Mumbai. The cheque is also of Bank of India, Mumbai, which was deposited at Delhi and the same was dishonoured at Mumbai. The head Office of the company situates at Mumbai which has not been mentioned in the complaint. Therefore where the cheque was delivered for encashment cannot be made place of jurisdiction.

In support of his contention, the learned counsel for the applicants has placed reliance upon several decisions of the Apex Court, which are as follows :-

(i) Harman Electronics Private Limited and Another Vs. National Panasonic India Private Limited, 2009 (1) S.C.C. P.720.

(ii) Associated Cement Co. Ltd. Vs. Keshavanand, 1998 (1) S.C.C. P.678.

(iii) Maharaja Developers & Anr. Vs. Udaysingh Pratapsinghrao Bhonsle & Anr. 2007 Crl.L.J. P.2207.

(iv) Sabitha Ramamurthy and Another Vs. R. B. S. Chhanabasavaradhya 2006 (1) S.C.C. P.581.

(v) S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla And Another, 2005,(8) S.C.C. P.89.

It is further contended by the learned counsel for the applicants, that while issuing process the Magistrate ought to have gone through the allegations made in the complaint as to whether the complaint has constituted any offence against a person or not. Thus in the instant case, even from the bare perusal of the complaint it is not evident whether the applicant was authorized and responsible for the conduct and business of the company and without making any such specific averments made in the complaint, therefore requirement of Section 142 of N. I. Act cannot be said to be complied with. The liability arises only on the fulfillment of the requirement and not merely by saying and arraying the applicant as a party by mentioning him as a Director/Authorized Signatory of the company, M/s. Ensemble Furniture Solutions Pvt. Ltd. The complaint is also silent as to whether the applicant was incharge of the business of the company at the material point of time. The complainant ought to have mentioned it clearly that the applicant was involved in the affairs of the business of the company.

It has also contended by the learned counsel for the applicant that the statement of the complainant was not recorded as required under Section 200 Cr.P.C. and the applicants have merely been summoned on the basis of an affidavit of the complainant. It is held in Maharaja Developers(supra) that the proceedings under Section 138 N. I. Act does not override the provisions of Section 200 Cr.P.C. and it is mandatory for the Magistrate to examine the complainant who has filed the complaint under Section 138 N. I. Act. Therefore, the Magistrate was duty bound to examine upon oath to the complainant and his witnesses before issuance of process under Section 203 Cr.P.C. the learned Magistrate while taking cognizance of an offence on the complaint of the opposite party no.2 has completely give go bye to the mandatory requirement of Section 200 Cr.P.C. under Chapter XV of the Code. The learned Magistrate can dismiss the complaint if he is of the opinion that there is no sufficient ground in the complaint after considering the statement on oath. In view of Section 200 Cr.P.C. the physical presence is must since in the absence of the complaint the Magistrate is also empowered to dismiss such complaint.

During the course of argument it has also been contended by the learned counsel for the applicants that the complaint was filed before the expiry of the period of 15 days from the receipt of the statutory notice and as such the requirements of Section 138 N. I. Act has not been fulfilled. The statutory requirement to constitute offence under Section 138 N. I. Act has to be fulfilled before cognizance of offence is taken as the ingredients of Section 138 N. I. Act imposes certain conditions which are required to be fulfilled. The service of receipt of the notice give rise to cause of action for filing complaint, but in the instant case the complaint is absolutely silent as to when the notice was received by the applicant. No specific date has been mentioned therein, therefore as to when the cause of action arose to initiate the proceedings has not been taken into account by the court below while taking cognizance against the applicant. Thus in the absence of complying with the mandatory requirements of the Act, summoning order passed against the applicants is nothing but an abuse of the process of court and as such the proceedings initiated against the applicants is liable to be rejected.

Per contra the learned counsel appearing on behalf of the opposite party no.2 has contended that the instant petition has been filed by concealing some material facts and the applicants was succeeded in getting an exparte interim order by this Court, whereby the entire proceeding has been stayed. It has not been denied by the applicant that the opposite party no.2 had supplied goods to the applicant's company which was received by the company without any protest and no objection what so ever was ever raised with regard to the quality of goods supplied or whether the goods were supplied belatedly, nor the said goods were ever returned. The applicants' company had given a notice to the opposite party no.2 on 6th February, 2009 in reply to the letter of the opposite party no.2 in respect of the payment of a sum of Rs.7,12,390/- through a cheque which was dishonoured, where they had never disputed the return of the said amount and had requested the opposite party no.2 to sent a representative to collect the demand draft which clearly shows that the applicant had accepted its liability to pay the said amount for which the cheque was drawn by the company. Later on the company had made objections with regard to the quality of goods to avoid the payment of money. The goods were supplied to the company worth Rs.7,12,390/- for which the cheque was issued by the company. When the said cheque was deposited and was not encashed and the applicant had also not paid the amount even after the receiving of goods as well as the notice, the opposite party no.2 had left with no other option but to file the complaint in accordance with law under the provision of Section 138 N. I. Act. There is neither any illegality nor irregularity in issuing summons against the applicant. There is specific assertion in the complaint that the applicant Vikas Rathod is the authorized signatory of the company with whom the business of supplying of laminated goods had taken place and the complainant had received the cheque in respect of the goods purchased by the applicant which was received in the office at Hapur. The same cheque was deposited in his account at Axis Bank, New Delhi which was dishonoured by the applicant's bank namely A. B. N. Amro with the endorsement of insufficient fund which was received by the company through Axis Bank on 5.1.2009. The cheque was returned without encashment the notice was given demanding Rs.7,12,390/-. But when the money was not returned after the expiry of the notice period of 14 days from the date of the receiving of notice the complaint was filed on 17.2.2009. Thus raising question of jurisdiction respect of the maintainability of the complaint is absolutely baseless as cheques were returned undelivered at Hapur. The manufacturing of laminates is done at Hapur, the notice has also been given from Hapur and the reply in respect of the dishonour of cheque was also received at Hapur. When the company had accepted its liability therefore part of offence has been committed within the jurisdiction of court at Hapur. Hence the cognizance of offence by a Chief Judicial Magistrate, Hapur cannot be said to be in violation of the Criminal Procedure Code. The applicant no.2 is the Director of the company and the goods were supplied to the applicant's company, who has also given reply on 6.2.2009 to the opposite party no.2 to sent its representative to collect the bank draft. Therefore, it cannot be said that the applicant is not responsible to the conduct of the business of the company. Section 141 of the N. I. Act clearly envisages that the company is a legal entity and every person at the time of the offence incharge of or responsible to the company for the conduct of its business shall be deemed to be guilty of the offence and liable to be prosecuted and in the complaint it has been specifically averred that the applicant is the Director and authorized signatory. When arrayed as authorized signatory and the same has been specifically mentioned in the body of the complaint that the applicant is authorized signatory, who had issued the cheque in question, then it leads to irresistible conclusion that the applicant was managing the affairs of the business and was responsible for the conduct of day to day business of the company. Thus the court below has committed no illegality and has rightly taken cognizance against him.

The learned counsel for the opposite party no.2 has relied upon the number of authorities of the Apex Court which as as follows :-

(i) Rakesh Sharma Vs. State of Rajasthan, 2010, RAJW2, P.1847.

(ii) Vinod Singh Negi Vs. State of Uttaranchal, 2006, J.I.C. 2, P.100.

(iii)Mandvi Cooperative Bank Limited Vs. Nimesh B. Thakore, 2010, Vol.3, SCC P.83.

(iv) A.V.R. Murthy Vs. Nunna Venkata Ravanamma, 2010, Ald(Cri.), 1, 990.

(v) Sri Tridib Dutta Choudhary Vs. Pinak Bhattacharjee, 2011.T.L.Gau-0-128.

(vi) Radhey Shyam Garg Vs. Naresh Kumar Gupta, 2009, 13, SCC 201.

I have anxiously considered the prolix submission of the learned counsel for the parties advanced at the bar and have gone through the record.

The question of territorial jurisdiction is involved in the petition. Undoubtedly a cheque of Rs.7,12,390/- was given by the applicant company in lieu of goods supplied by the company of the opposite party no.2. A cheque of Rs.712,390/- of A.B.N. Amro Bank, Mumbai was given at the office of the complainant situated at Village Acheja, Hapur, District Ghaziabad. When this cheque was deposited at Axis Bank at New Delhi on 1.1.2009 it was returned with the endorsement of insufficient fund on 5.1.2009 by the A.B. N. Amro Bank, Mumbai and thereafter the same was returned by the Axis Bank on 10.1.2009. When the cheque was returned without any payment, the legal notice was sent to the applicant. Demanding the payment of due amount. The said notice was duly received by the applicant and after expiry of fifteen days from the date of service of notice the complaint was filed by the opposite party no.2 on 17.2.2009 under Section 138 N. I. Act.

The learned counsel for the applicant has placed reliance upon the decision of the Apex Court in Harman's case(supra) and has contended that similar question was also involved in that case where the appellant and respondent had entered into a business transaction. The appellant was the resident of Chandigarh and was carrying his business at Chandigarh, the cheque was issued at Chandigarh and the complainant's branch office was at Chandigarh, though its head office was at Delhi. The cheque was presented at Chandigarh which was sent for collection to Delhi as the cheque was dishonoured at Chandigarh, however the respondent had sent the notice from New Delhi asking for the payment and the said notice was served upon the respondent at Chandigarh and in that context the Apex Court had held that Delhi High Court has no jurisdiction to try the case and the matter was transferred to the court of District Sessions Judge Chandigarh. This Court is not convinced with this contention that the present proceeding initiated at Ghaziabad is without jurisdiction as no action what so ever had taken place at Hapur, Ghaziabad. In the instant case the notice was sent from Hapur which was received by the applicants and the reply was sent by them from Mumbai at Hapur address. Therefore, one of the components of the offence that is notice in writing to the drawer of the cheque demanding the payment of cheque was sent from Hapur, therefore the court at Hapur, Ghaziabad has jurisdiction to try the case. In this regard a reference to Section 178(d) of the Code of Criminal Procedure is necessary to be mentioned which runs as follows :-

"178(d). where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas."

In view of the above, the complainant can choose anyone of the Court having jurisdiction from any one of the local area within the territorial limits of which any act was done. In a case under Section 138 N. I. Act it is more important to decide whether the cause of action has arisen at all or not. To constitute an offence under Section 138 N. I. Act, the following facts required to be proved are :-

(I) issuance of the cheque.

(II) presentation of the cheque to the Bank.

(III) returning of the cheque unpaid by the drawee Bank.

(IV) giving of statutory notice in writing to the drawer of the cheque demanding payment of the cheque amount; and

(V) failure of the drawer to make payment within fifteen days of the receipt of notice.

Thus, demand in terms of clause b of proviso under Section 138 N. I. Act should be in writing and in the form of a notice. It is also evident that mere return of cheque dishonoured does not create an offence under Section 138 N. I. Act and offence only get completed after notice was served and payment required by notice was not made. When the notice was sent demanding payment of the cheque amount the place from where the notice was sent also becomes the place of trial for the offence under Section 138 N. I. Act. It is undisputed that the cheque was returned undelivered at Hapur. The notice was given from Hapur and its reply was also given from Hapur wherein the applicant company had accepted its liability. Hence the cognizance of offence cannot be said to be without jurisdiction. In view of above factual position the case of Harman Electronics(supra) is clearly distinguishable and with respect it is not applicable.

I am not in agreement with the contention of the learned counsel for the applicants that the statement of the complainant was not recorded as provided under Section 200 of the Code of Criminal Procedure, and the court below has proceeded merely on the basis of the affidavit of the complainant that it was mandatory upon the court concerned to examine the complainant on filing the complaint under Section 138 N. I. Act, hence there was no compliance of the provision of the Code, therefore, the summoning order passed against the applicant suffers from procedural illegality, liable to be quashed. The catena of decision of the Apex Court has been cited in this regard, where the Apex Court has observed that the magistrate is not duty bound to examine upon oath the complainant and his witnesses while issuing process. From the perusal of Section 145 N. I. Act, it starts with non obstante clause which reads thus :-

"145. Evidence on affidavit.-(1) Notwithstanding anything, contained in the Code of Criminal Procedure, 1973(2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code."

Section 145 of the Act is having overriding effect on the provision of Code of Criminal Procedure providing procedure for the complainant's evidence at the stage of inquiry, trial and other proceedings, therefore, the evidence of complainant may be given on an affidavit not only during the course of trial but even prior to issue of process. In Rakesh Sharma Vs. State of Rajasthan, 2010, RAJW2, P.1847, the question whether evidence of the complainant may be given on affidavit at pre-summoning stage in a complaint for an offence under Section 138 N. I. Act was settled after considering various authorities in the context of the provision of law under Section 145(1) of N. I. Act. In this regard, paragraph nos.20, 21 and 22 are quoted below :-

20.In reference to the aforesaid para, judgment in case of Pankajbhai Nagjibhai Patel(supra) and also judgment in case of Radhey Shyam Garg(supra) as decided by the Delhi High Court and upheld by the Hon'ble Apex Court are required to be seen. Perusal of the aforesaid two judgments makes it clear that judgment in case of Prakash Chand(supra) cannot hold filed. For clarity, it is necessary to mention that Section 145 of the N. I. Act is enabling provision for the complainant as the word 'may' has been used for his evidence on affidavit. It is not mandatory that complainant has to give his evidence on affidavit only. However, when the complainant chooses to give his evidence on affidavit during the course of enquiry, trial and or other proceeding, it cannot be said that such evidence on affidavit can be allowed during the course of trial alone. It is a settled law that no word of statutory provision can be left out for the purpose of giving interpretation. The word 'enquiry' used under Section 145 gets no meaning if evidence by the complainant on affidavit is not allowed before issuance of process as per Section 204 of Cr.P.C. If the intention of the legislature would have been that evidence by the complainant on affidavit can be given during the course of trial alone, then there was no reason to insert words 'enquiry' and 'other proceeding' in Section 145 of N. I. Act. Thus, in view of the aforesaid also, the argument of learned counsel for petitioner cannot be accepted or if we accept the argument, then Section 142 of the N. I. Act cannot be accepted in the manner interpreted by the Hon'ble Apex Court in case of Pankajbhai Nagjibhai Patel (supra). The outcome of the discussion made above is that Section 145 of the N. I. Act is having overriding effect on the provisions of the Code of Criminal Procedure providing contrary procedure for the complainant's evidence at the stage of enquiry, trial and other proceeding. Sections 4 and 5 of the Cr.P.C. cannot be given narrow interpretation otherwise the very purpose and object of bringing amendment under Section 142 to 147 of the N. I. Act will frustrate as otherwise elaborately discussed by the Hon'ble Apex Court in case of M/s. Mandvi Co-op Bank Ltd.(supra).

21.In view of discussion made in reference of the provisions of the Negotiable Instruments Act as well as Code of Criminal Procedure, I am of the opinion that Sections 142 to 147 of the Negotiable Instruments Act have to be given effect and any provision contrary in the code of Criminal Procedure cannot have overriding effect. The effect of the provisions of Sections 142 to 146 of the N. I. Act have been dealt with by Delhi High Court as well as Hon'ble Apex Court in the cases of Radhey Shyam Garg and M/s. Mandvi Co-op Bank Ltd.(supra) wherein it has also been held that Sections 142 to 146 will attract to the trial in a complaint maintained pursuant to Section 190 of the code of Criminal Procedure and it departs from the procedure contrary given in the Code of Criminal Procedure.

22.In view of discussion made above, my composite answer to the two questions framed above is that evidence of complainant may be given on affidavit not only during the course of trial but even pre-summoning stage i.e., before issue of process pursuant to Section 204 of the Cr.P.C. In view of the aforesaid, provisions of Section 145 of the N. I. Act would be having overriding effect to the provisions contrary provided under the Code of Criminal Procedure. The issue having been answered in the aforesaid manner. Thus there remains no substance in the criminal miscellaneous petition challenging order dated 1.2.2010 and according same is dismissed.

The Hon'ble Apex Court in M/s. Mandvi Cooperative Limited case(supra) has held that Section 145 with its non obstante clause makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant may be read in evidence subject to all just exception so meaning thereby anything inadmissible in evidence would not be taken in as evidence, even though stated on affidavit. In the instant case the bank slip with the official remark showing that the cheque was dishonoured on account of insufficient fund itself give rise to the presumption of dishonour of cheque. In paragraph 25 of the aforesaid case the reason has been mentioned to take evidence on affidavit which is mentioned herein below :-

"25. It is not difficult to see that Sections 143 to 147 lay down a kind of special code for the trial of offences under Chapter VII of the Negotiable Instruments Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure expeditious as possible without in any way compromising on the right of the accused for a fair trial. Here we must take notice of the fact that cases under Section 138 of the Act have been coming in such great multitude that even the introduction of such radical measures to make the trial procedure simplified and speedy has been of little help and cases of dishonoured cheques continue to pile up giving rise to an unbearable burden on the criminal court system."

Thus, under Section 145(2) of the Act all the evidence including substantive evidence may be given on affidavit with the sole object to a simpler and swifter trial procedure departing from the elaborate and time consuming trial procedure of the Code. Such evidence given on affidavit is admissible and therefore the court below has committed no error while entertaining the affidavit of the complainant and passed the impugned order against the applicants. The High Court of Assam in Tridib Dutta Choudhary(supra) case has also held that there is no infirmity in taking cognizance of the offence under Section 138 N. I. Act on the basis of the affidavit in evidence of the complainant. In A. V. R. Murthy case(supra), High Court of Andhra Pradesh has observed that receiving of sworn affidavits from the complainant instead of recording sworn statement by the Magistrate before taking cognizance of offence under the Act is permissible and is not in anyway contrary to the procedure prescribed by law. The High Court of Uttaranchal in case of Vinod Singh Negi's case(supra), dismissed the petition by holding that if the Magistrate takes the cognizance and proceeds under Section 200 and 202 Cr.P.C. it is an inquiry under the provisions of Cr.P.C. and the complainant is entitled to file the affidavits in support of his evidence.

The contention of the learned counsel for the applicant that complaint was filed prior to the expiry of fifteen days, is against the statutory requirement as provided under Section 138 N. I. Act, has no legs to stand. After the completing of the period the notice was sent on 17.1.2009 which was duly received by the applicants on 22.1.2009. The acknowledgment receipt was filed along with the complaint which is quite evident from the bare perusal of the summoning order, which shows that the notice was received by the applicants on 6.2.2009 and thereafter, the complaint was filed on 17.2.2009 much after the expiry of fifteen days, and this plea was never raised earlier while filing the petition and raised only during the course of argument. It is evident that the complaint was filed after the expiry of fifteen days regarding which the applicants cannot derive any benefit.

So far as the contention of the learned counsel for the applicant that the complaint is absolutely silent, as to the applicant no.2 was responsible for the affairs of the company and hence he cannot be liable to be prosecuted. Quintessentially, the record shows that the applicant's company had placed orders for supply of laminates time to time. Various invoices have been annexed with the reply to the petition and the counter affidavit, which shows that there was business communication with regard to the supply of goods by the applicant and also with regard to the poor quality of the goods supplied, and only to avoid payment he used to complaint about the poor quality of the goods supplied. The company itself written a letter on 8.1.2009 requesting the respondent-complainant for not encashing of the cheque though the same is not in dispute in the present petition. The complainant had already communicated about the amount due in respect of the goods supplied and earlier had issued a legal notice on 17.2.2009 on which the applicant company had given a reply. The exchange of various invoices and letters indicate that the applicant no.2, who is the Director of the company is fully responsible for the conduct of day to day business of the company, and merely because the complainant has not described the responsibility of each and every Director of the company in the complaint or the role played by the different Directors in the company, will not be a ground to quash the proceedings against the applicants by this court at the very initial stage. It is not all denied by the applicants that the applicant no.2 is not the Director of the company.

From the perusal of the complaint it is evident that the applicant no.2 is mentioned as Director of the company and the cheque was signed by him on behalf of the company. The relevant material to consider the controversy in terms of Section 141 of the Act would be decided by the trial court itself and it would not be proper at this stage to express any opinion in this regard.

Substance of allegations in the complaint, if read as a whole, prima facie makes out the commission of offence against the applicant, and as such the learned Magistrate has committed no error in taking cognizance and passed the summoning order against the applicant. Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of appreciation of the evidence in respect of the contentions raised as above in accordance with law. It is the function of the trial court. The allegations made in the complaint as well as the documentary evidence brought on record by the complainant is just and proper to proceed against the applicant. At this stage only prima facie case is to be seen in the light of law laid down by the Apex Court in cases of R. P. Kapoor Vs. State of Punjab, AIR, 1960 SC 866, State of Haryana Vs. Bhajanlal 1991 (28) ACC 111(SC). This court in exercising jurisdiction under Section 482 Cr.P.C. cannot embark upon the enquiry as to whether the court below has wrongly proceeded against the applicant, or whether on reasonable appreciation of it accusation would not be sustained. The trial court will decide the case after recording the evidence adduced before it. The Apex Court has laid down the guidelines in the case of State of Haryana Vs. Bhajanlal, 1999 SCC(Crl) 426, where the criminal proceedings could be interfered and quashed, but the same is inapplicable in the present set of facts and circumstances.

In view of the above conspectus of the case, neither there is any miscarriage of justice, nor any abuse of the process of the court. Hence, the present petition is devoid of any merit and is hereby dismissed.

The interim order granted earlier, is hereby vacated. The court below is directed to proceed with the case expeditiously as early as possible uninfluenced by any observations made herein above.

However, it is provided that if the applicants have not surrendered, they are directed to appear and surrender before the court below within one month from the date of order and apply for bail, their prayer for bail shall be considered in view of the settled law laid down by this Court in the case of Amrawati & another Vs. State of U.P., 2004 (57) ALR 290, as well as judgment passed by Hon'ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 (67) ACC 966 SC. For a period of thirty days no coercive action shall be taken against the applicants. In case, the applicants failed to appear within the aforesaid prescribed time the court below shall take appropriate action against them.

Office to send a copy of this order to the court below within fortnight.

Order Date : 22/12/2011.

Mustaqeem.