Smt.Minakshi And Another vs State Of U.P And Another
2023 Latest Caselaw 14327 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:97971
 
Court No. - 68
 

 
Case :- APPLICATION U/S 482 No. - 34636 of 2022
 

 
Applicant :- Smt.Minakshi And Another
 
Opposite Party :- State Of U.P And Another
 
Counsel for Applicant :- Laxmi Kant Bhatt
 
Counsel for Opposite Party :- G.A.,Anil Kumar Mishra,Raj Kumar Singh,Rishi Shrivastava
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. On 24.03.2023, the following order was passed:-

"1. This application under Section 482 Cr.P.C. has been filed challenging a summoning order dated 27.10.2021 passed in Complaint Case No. 1108 of 20211, under Section 168 of the Negotiable Instruments Act, 1881 and Section 420 I.P.C., and judgement dated 03.9.2022 passed by Additional Sessions Judge, Court No. 15, Meerut in Criminal Revision No. 107 of 20222 Police Station Medical, District Meerut.

2. Previously on 13.12.2022, on the solemn undertaking of Sri Laxmi Kant Bhatt, learned counsel for the applicants, an interim protection was granted to the applicants with a condition that the applicants will handover a draft of Rs. 12 lakhs to opposite party no. 2 - Mrs. Sansarwati. In the said order, the Court further observed that in the event, the applicants fail to comply with the directions of this Court, the interim protection given today shall automatically deemed to be vacated and Registrar (Compliance) was directed to inform the court concerned to recover the entire amount by using all his might and power to recover the entire amount with 6% compound interest over it and hand over the same to the opposite party no.2 within a month thereafter.

3. Sri Anil Kumar Mishra, earlier counsel for the opposite party no.2 and Sri Rajat Aren, subsequently engaged counsel on behalf of opposite party no. 2 are present. Learned counsel for the opposite party no. 2 submit that in between the date of interim order i.e. 13.12.2022 and today, the matter has been listed on three occasions i.e. 05.01.2023, 11.01.2023 and 03.03.2023 but the record was not sent to the Court by the office.

4. The Court finds that in order to get a favourable order, an undertaking was given by learned counsel for the applicants, however, to evade from making payment in compliance of the earlier order dated 13.12.2022, learned counsel for the applicants is not present even in the revised call today.

5. Perusal of record reveals that a letter dated 09.01.2023 was placed before the Registrar (Compliance), High Court, Allahabad by Sri Anil Kumar Mishra, learned counsel, who was representing opposite party no 2 at the relevant point of time, informing about non-compliance of the order dated 13.12.2022. In spite of letter dated 09.01.2023 and directions issued by this Court dated 13.12.2022, the Registrar (Compliance) has not placed any information if he has informed the court concerned about the order of this Court dated 13.12.2022, for necessary compliance.

6. With regard to the falling standard of Members of the Bar, apart from merits of the present case, it is apposite to remind a recent order of this Court dated 20.01.2023 passed in Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 6819 of 20213, wherein the counsel concerned placed two orders of same date in same case with different contents. The said issue is still drawing attention of this Court. Relevant excerpt of the said order reads thus:

"...

Perusal of both the orders, quoted above, reveals different contents though the details mentioned in ''cause title' and ''order date' are same. This obfuscating state of facts is necessitated to be scrutinized.

Today again no one is present on behalf of the applicants even in revised call.

Daring or it may be called in literal words 'insincere' act of an Advocate does not allow my consciousness to eschew it in such a bizarre situation where the concerned responsible person is trying to hide by adopting the practice of absenteeism.

Courts always have respect and faith over, even any vocal statement advanced by a lawyer at Bar and hardly express disbelief over it. However, present case is filled with sufficiency of unreliability to run over such impression, which may, in future, be detrimental to such an admiring relationship between the Bench and Bar.

To imbibe the ideas and suggestions of luminaries of the Bar over such spectrum where Advocates are required to be guided with ethics and moral obligations in respect of professionalism to safeguard the traditional belief, the matter is posted for 07th February, 2023.

Let notices be issued to Sri Aditya Prasad Mishra (En. No. UP3761/1999, Advocate Roll No. A/A- 0134/12, Seat No. 16-A, Behind Ch. No. 67, High Court, Allahabad, Mob. No. 9455531284) and Sri Pradeep Kumar Pandey (En. No. UP8154/2017, Advocate Roll No. A/P 0019/2019 - Common Room No. 2, High Court, Allahabad, Mob. 9956736805), learned Advocates to explain under what impression different order has been placed on record and why the proceedings be not asked to be initiated by the U.P. Bar Council. The applicants shall also file their personal affidavits separately as to why prosecution for perjury be not proposed against them.

The President and the Secretary of Allahabad High Court Bar Association, Allahabad are requested to look into the conduct of both abovenamed advocates in the matter, and render their assistance to the Court, on the next date fixed, regarding the course of action which they think fit to suggest for.

..."

7. Since the Advocates are the pillars of judicial institutions, they are not supposed to shake off their implicit faith for little to no gain. Taking note of weird situation in the cases akin to the present one and to arrest the deterioration of the standard of legal profession which affects the entire justice delivery system, some alleviative contours are required to be suggested.

8. The President and the Secretary of Allahabad High Court Bar Association, Allahabad are requested to appear on the next date to render their assistance to do away with the recurring alarming issues being erupted at the end of some Members of the Bar.

9. Sri Laxmi Kant Bhatt (AOR No. A/L-0329/15), Seat No. 5A, Third Floor (Near Lift), T.U. Hall, High Court, Allahabad, Mobile No. 9161565052, shall remain present in the Court on the next date, to explain his conduct of desecrating the solemn undertaking, weighing belief thereon, earlier, the Court had granted interim protection in the matter.

10. List this case on 06th April, 2023, as fresh. Interim protection granted by this Court stands vacated.

11. The Senior Superintendent of Police, Meerut is directed to ensure presence of applicant no. 1 - Smt. Minakshi (daughter of opposite party no. 2), wife of Sri Vinod Kumar Katariya and applicant no. 2 - Vinod Kumar Katariya (son-in-law of opposite party no. 2), son of Khemchand Katariya, who are presently residing at Dehradun (Address mentioned in Petition: Mohalla Menhuwala, Near P.N.B. Bank Main Road, Shimla Bypass, Dehradun, Police Chauki ISBT Dehradun, District Dehradun, Uttarakhand). The SSP, Meerut may communicate about this order to the concerned senior police officials at Dehradun for necessary compliance.

12. Registrar (Compliance) and the concerned Sectional Head shall place their reports regarding the steps taken by them, after the application moved by learned counsel for the opposite party on 09.01.2023, to communicate the concerned court. The steps taken by the concerned court be also reported by the next date.

13. The Registrar General and Registrar (Compliance) of this Court shall ensure that this order be communicated to all concerned forthwith."

2. Thereafter, on 20.04.2023, the following order was passed:-

"1. In compliance of earlier order of this Court dated 24.03.2023, the applicants ? (1) Smt. Minakshi and (2) Vinod Kumar Katariya are present before this Court. They have been identified by their counsel Sri Laxmi Kant Bhatt.

2. Mr. Bhatt tendering, unconditional apologies, states that he could not appear before the Court, on last occasion, due to some personal difficulty and will be careful in future to sidestep such situation in crucial matters alike the present.

3. Sri Nitin Sharma, learned Hony. Secretary, High Court Bar Association, Allahabad was also present to render his assistance as requested for. Mr. Sharma, very fairly embraced the need with prospective determination, as discussed in earlier order and assured the Court that all amenable steps would be undertaken ensuring that Members of the Bar abstain from such practice that becomes the cause of denigration in the profession. The Court appreciates and extends confidence over the spirit and genuineness of the flourishing views expressed by Mr. Sharma.

4. Report of Registrar General dated 05.04.2023 along with the report of Registrar (J) (Criminal), Registrar (Compliance) and other officers of Section concerned, reflects that cardinal reason for failure of communication with reference to the letter of learned Advocate dated 09.01.2023 regarding listing of case on 05.01.2023, and subsequent date i.e. 11.01.2023, as also unavailability of file on the dates of listing, is immense pressure of workload and sparse availability of staff which is disproportionate to the heavy rush of files. However, the excuse does not fetch appreciation as the avoidance of such apathy may save precious time of the Court. Registrar (Compliance) is required to strictly adhere to the directions of the Court, in future, and in the event to any confusion, he may consult with the Registrar (Judicial) of the Section concerned.

5. Having heard learned counsel for the parties, it seems that there are chances of settlement in the matter in case the opposite party no. 2 - Sansarwati also remains present.

6. In view of the above, let the both applicants and opposite party no.2 as well as brother of applicant no. 1 ? Shaktivardhan be present before this Court on the next date.

7. Put up this case on 01.05.2023, as fresh, in Chambers at 02:00 P.M. Learned counsel representing the parties shall ensure compliance of this order. Till then no coercive action shall be taken against the applicants.

8. On the aforesaid date, Mr. Anil Kumar Mishra, learned Advocate, earlier counsel for the opposite party no.2, shall also remain present to assist the Court.

9. Office to communicate this order to Mr. Nitin Sharma, Hony. Secretary, High Court Bar Association, Allahabad, and Registrar (Compliance) of this Court."

3. Subsequently, on 01.05.2023, the following order was passed:-

"Learned counsel for the applicants submits that he was instructed by the applicants to give statement that they are ready and willing to pay Rupees Twelve Lakh. However, while hearing the matter the Court finds that the applicants are requesting for one year's time to pay the amount, whereas, the opposite party no. 2 has not consented for the same.

On joint request, put up this case on 08th May, 2023, as fresh, to be heard on merits."

4. As consented by the parties, the matter is being heard finally on merit.

5. Heard Mr. Laxmi Kant Bhatt, learned counsel for the applicants, Mr. Raj Kumar Singh, Advocate assisted by Mr. Rajat Aren, learned counsel for the opposite party no.2, Mr. K.P. Pathak, learned AGA for the State and perused the records.

6. The present application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 27.10.2021 in Complaint Case No.1108 of 2021 (Sansarwati vs. Minakshi & another), under Section 420 IPC and Section 138 of N.I. Act as well as the judgment and order dated 03.09.2022 passed by learned Additional Session Judge, Court No.15, Meerut in Criminal Revision No.107 of 2022 (Smt. Minakshi vs. State of U.P. and another), Police Station-Medical, District-Meerut.

7. Brief facts of the case are that the opposite party no.2 filed a complaint on under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the applicants stating therein that the applicants are daughter and son-in-law of opposite party no.2. The opposite party no.2 retired from the post of Health Visitor in June, 2016 and received an amount of Rs.30,00,000/- as gratuity and provident fund. When the applicants came to know about the aforesaid, they requested the opposite party no.2 to pay Rs.18,00,000/- as they want to purchase some plot and assurance was also given by the applicants that the aforesaid amount shall be returned as soon as possible. On their assurance, the opposite party no.2 had given the amount in the account of applicant no.2; Vinod Kumar Katariya, through RTGS of Rs.10,00,057/- bearing Cheque No.201711 dated 25.03.2017 and Rs.8,00,059/- bearing Cheque No.201714 dated 18.10.2017. After passage of sometime, when the opposite party no.2 was need of money, she requested the applicants to return the aforesaid amount and inspite of repeated request nothing was done. A complaint in this regard was made before the senior police officials also. On the aforesaid complaint, the mediation was carried out between the parties at the police station where the applicants agreed to pay an amount of Rs.14,00,000/- to the opposite party no.2. In view of the aforesaid settlement between the parties, the applicant no.2 had issued a cheque of Rs.6,00,000/- from Corporation Bank, Branch-Jaban, Dehradun, bearing cheque no.019973 dated 25.03.2021 in favour of opposite party no.2. On receipt of the same, opposite party no.2 has presented the same before the concerned Bank for encashment on 14.04.2021, but the same was dishonoured due to "payment stopped by drawer" on 16.04.2021. The aforesaid fact was informed by the opposite party no.2 to the applicants, who again requested the opposite party no.2 to present the cheque before the Bank after sometime.On the aforesaid assurance, the aforesaid cheque was again presented before the Bank n 15.06.2021, but the same was again dishonoured with the same remark "Payment stopped by the drawer". Thereafter, opposite party no.2 sent a legal notice to the applicants on 25.06.2021 through registered post, which has been received by the applicants on 30.06.2021. After the notice neither any amount was paid nor reply was submitted by the applicant, therefore, the present compliant has been filed on 23.07.2021. Subsequently, the learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 04.02.2020, under Section 138 of the Act.

8. Learned counsel for the applicant submits that the present complaint is not maintainable as per Section 138 of N.I. Act as the same has not been filed within 30 days of service of notice upon the applicants. He further submits that the present case has been instituted with mala fide intentions, in order to harass and extract money from the applicants. Thus, the summoning order as well as the entire proceedings is liable to be quashed.

9. On the other hand, Mr. K.P. Pathak, learned AGA for the State, has submitted that the summoning order passed by the concerned Magistrate is legal and just in the eyes of the law and at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold. The submission raised by the learned counsel for the applicants is not accepted as the complaint is within time even otherwise as per law. Therefore, the present application is liable to be dismissed.

10. I have carefully considered the submissions advanced by learned counsel for the parties and have also gone through the material available on record.

11. Before proceedings further, it is apposite to give reference of some judgments of the Apex Court as well as this Court, wherein the Apex Court has laid down the guideline for quashing of criminal proceedings arising out of Section 138 of N.I. Act, which are as follows:-

i) C.C. Alavi Haji Vs. Palapetty Muhammed and Another, reported in (2007) 6 SCC 555;

ii) Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah, reported in 2014 12 SCC 685;

iii) Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyarelal, reported in (1999) 3 SCC 35;

iv) Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418;

v) Kishan Rao Vs. Shankargouda, (2018) 8 SCC 165;

vi) Ranjit vs. State of U.P. and another decided on 31.01.2020 passed in Application U/s 482 No. 47282 of 2019.

12. In view of the settled legal position, as noticed above, it is clear that at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold. All the submissions made by learned counsel for the applicant is disputed questions of fact. Therefore, when the facts have to be established by way of evidence, this Court while exercising the powers under section 482 of Cr.P.C., cannot interfere with such proceedings.

13. It is well settled that for the purpose of quashing of a complaint, the High Court cannot look into the defence of the accused. The Court is only required to see whether on the basis of the averments made in the complaint and the relevant particulars produced by the complainant, there are grounds for proceeding against the accused. Inherent power of quashing criminal proceedings U/s 482 Cr.P.C. should be exercised very sparingly and with great circumspection. It does not confer on the court to act arbitrarily as per its own whims and caprice. At this stage, the Courts could not have gone into the merits and reached a conclusion that there are no existing debt or liability and quash the complaint. Therefore, the basic law is that the complaint under Section 138 of Negotiable Instrument Act cannot be quashed by High Court by taking recourse to Section 482 Cr.P.C, if disputed questions of facts are involved which need to be adjudicated after respective evidence is led by the parties before the trial court

14. On the basis of discussions made herein above, this Court finds that there is no illegality or infirmity in the summoning order dated 27.10.2021 as well as the order dated 03.09.2022 passed by the concerned court below. Therefore, the prayer for quashing the impugned summoning order as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage.

15. In view of the aforesaid, the application is, accordingly, dismissed.

Order Date :- 8.5.2023

Jitendra/-