Shri Ram Jee vs State Of U.P. And Another
2022 Latest Caselaw 3542 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 92
 

 
Case :- APPLICATION U/S 482 No. - 4744 of 2021
 

 
Applicant :- Shri Ram Jee
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Akhilesh Kumar Singh,Mahesh Prasad Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Manish Kumar,J.

The present petition has been preferred for quashing of the orders dated 17.09.2020 & 06.01.2021 passed by learned Special chief Judicial Magistrate, Kanpur Nagar in Complaint Case No. 433 of 2019, under Sections 138 N.I. Act, Police Station Govind Nagar, District Kanpur Nagar, by which the learned Magistrate has proceeded illegally in contravention of order dated 24.09.2019 passed in Criminal Misc. 482 Application No. 35367 of 2019 in as much as Criminal Misc. 482 Cr.P.C. Application No. 11982 of 2020.

This is the third application/petition under Section 482 Cr.P.C. preferred by the applicant. The first Application U/s 482 No. 35367 of 2019 was filed with a prayer for quashing of the summoning order dated 27.03.2019 passed by Special chief Judicial Magistrate, Kanpur Nagar as well as the entire proceedings of Complaint Case No. 433 of 2019, under Section 138 of Negotiable Instrument Act. The above mentioned petition was finally disposed of with a direction which is quoted hereinbelow:-

"As requested by the counsel, it is directed that the accused may appear before the court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence through compromise. On such application being moved, the concerned court may take adequate steps in accordance with law in this regard and shall provide further opportunity to the accused which shall not exceed a maximum period of four months from today to make an endeavour in this direction. Thereafter, the court shall pass necessary orders specifically keeping in view the law laid down by the Apex Court in the case of Damodar S. Prabhu (supra) as also the latest amendment made in the Act in the year 2018 within a period of five months from today."

It is further submitted that in compliance of the judgment/order dated 24.09.2019, the applicant had filed an application under Section 205 Cr.P.C. for exemption from personal appearance but the learned court below in place of sending the matter to the Mediation and Conciliation Centre, as directed by this Court, has passed an order on 23.10.2019 fixing the case for hearing on 05.11.2019. Copy of the order dated 23.10.2019 has been filed by filing a supplementary affidavit and the same is at page 12 of the supplementary affidavit. It is further submitted that on 05.05.2020, the learned trial court has rejected the application moved under Section 205 Cr.P.C. preferred by the applicant. Feeling aggrieved by the order dated 05.02.2020, the applicant had preferred a second Application under Section 482 No. 11982 of 2020 challenging the order dated 05.02.2020 seeking direction to the Court below to decide the matter in the light of Damodar S. Prabhu Vs. Sayed Babalal H., [2010(5) SCC 663] and Meters and Instruments Private Limited Vs. Kanchan Mehta, [LAWS (SC) 2017 10 1]. It is further submitted that in place of sending the the matter to the Mediation and Conciliation Centre, an order dated 17.09.2020 has been passed by the court below with a direction for appearance of the applicant and ten days' time was granted to the applicant to surrender for the purposes of bail which is under challenge in the present application on the ground that the court below has not complied with the judgment and order dated 24.09.2019 passed in Criminal Misc. 482 Cr.P.C. Application No. 35367 of 2019 preferred by the applicant.

On the other hand, learned AGA and Sri Prakhar Tandon, learned counsel for respondent no. 2 have submitted that the applicant, just to linger the proceedings and deprive the respondent no. 2 to get justice, time and again, approaching this Court without complying with the direction issued for the applicant by this Court vide its order dated 24.09.2019, where this Court has directed that " the accused may appear before the Court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence through compromise" but till date, the applicant has not filed any application through compromise rather he preferred an application under Section 205 Cr.P.C. for exemption of his appearance which has already been exempted by this Court vide its order dated 24.09.2019. There was no occasion for moving an application under Section 205 Cr.P.C. in place of moving an application seeking compounding of offence thorugh compromise. It is further submitted that till date, as per the direction of this Court, no application has been moved by the applicant seeking compounding of offence through compromise nor any compromise has been agreed between the parties till date. It is further submitted that when on the application u/s 205 Cr.P.C., the order has been passed, the applicant approached this Court again by filing APPLICATION U/S 482 No.- 11982 of 2020 where the direction has been issued to decide the matter in the light of Damodar S. Prabhu (supra) with an observation that 50 per cent of the amount of Rs. 70,000/- will be deposited within fifteen days, till then, no coercive action shall be taken against the applicant. It is further submitted that the applicant has deposited the sum of Rs. 35,000/- within fifteen days and, thereafter, the court has passed the order to surrender for the purposes of bail, as protection is granted only for the period of fifteen days and there is no illegality in the order passed by the learned trial court.

After hearing learned counsel for the respective parties and going through the record of the case, it is found that the applicant keeps on hammering that the trial court has not complied with the directions of this Court passed in two applications/petitions under Section 482 Cr.P.C. wherein, this Court has directed to decide the matter in the light of Damodar S. Prabhu (supra) but the direction issued for the applicant by this Court vide its order dated 24.09.2019 that the accused may appear before the court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence through compromise has not been complied with till date and more than about two years five months have elapsed and the applicant is enjoying the protection granted by this Court. Despite the fact in the judgment and order dated 24.09.2019, this Court has also directed that the court below shall make an endeavour to decide the matter within a maximum period of four months which has already been expired on 24.01.2020. The applicant is only relying that part of the judgment and order dated 24.09.2019 where the directions were issued for the trial court but leaving that part of the direction which has directed the applicant to move an application.

At this stage, learned counsel for the applicant has submitted that the applicant has moved an application on 06.01.2020 for referring the matter to the Mediation and Conciliation Centre and draws the attention of this Court to page 32 of the paper book but it has been found that the said fact is also misleading as in the application dated 06.01.2020, the applicant is asking for stay of the order dated 17.09.2020. How this could be possible that the application could be moved for staying the order which was passed after about nine months. This Court vide its order dated 28.07.2020 has granted protection of no coercive action against the applicant only for a period of fifteen days with a direction to the applicant to deposit 50 per cent of the amount of Rs. 70,000/- and remitted the matter back before the court concerned to decide the matter in the light of Damodar S. Prabhu (supra).

From the aforesaid discussions, the position which emerges out is that the applicant has not complied with the directions issued to him by this Court vide judgment and order dated 24.09.2019, even today he has not filed any application, as directed and enjoying the protection granted and had approached this Court seeking direction to the court below to decide the matter expeditiously. Such a conduct of the applicant is not appreciable and taking advantage of the protection without complying with the directions issued for him. The said inaction of the applicant is nothing but misuse of process of the court.

This Court vide its order dated 28.07.2020 has not restrained the court below not to ask the applicant to surrender for the purposes of bail. The relevant paragraph of the order dated 28.07.2020 in which the protection was given is quoted hereinbelow:-

"50 per cent of amount of Rs. 70,000/- will be deposited within 15 days, till then no coercive action shall be taken against the applicant."

In the aforesaid paragraph, the protection is for only fifteen days and hence, there is no illegality in the order dated 17.09.2020 passed by the court below.

It is also pertinent to mention that the applicant in pursuance of the order of this Court dated 28.07.2020 deposited the demand draft of Rs. 35,000/- before the trial court and in compliance of order of this Court dated 26.03.2021 in the present case, deposited the demand draft of Rs. 1 lakh before this Court. The effective period of these drafts have however elapsed due to passage of time. Considering all facts and circumstances of the case, it would better serve the ends of justice, if the applicant is provided one more opportunity to move before the trial court for deciding the matter in the light of Damodar S. Prabhu (supra) before the court below and for this purpose, the applicant is directed (i) to appear before the trial court within one month from today (ii) to move appropriate application before the trial court for deciding the matter in the light of decision in the case of Damodar S. Prabhu (supra) within the same period of one month from today (iii) to deposit a demand draft in a sum of Rs. 1,35,000/- before the trial court along with the application since the validity of period of drafts deposited has already lapsed (iv) drafts which has already deposited in the court may take back the drafts as deposited by the applicant.

The petition/application stands finally disposed of in terms of the direction given above subject to the condition that in default of any direction nos. (i) to (iii), the applicant shall not be entitled for the benefit of order passed by this Court and in that event, the trial court shall proceed with the matter in accordance with the procedure, as provided under the law.

Order Date :- 20.5.2022

Nitesh