Uttarakhand High Court
C482/138/2018 on 1 April, 2023
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
01.04.2023 C482 No. 138 of 2018
Hon'ble Sharad Kumar Sharma, J.
Mr. Bhupesh Kandpal, learned counsel
for the applicant.
Mrs. Monika Pant, learned counsel for
the respondent.
As a consequence of dishonour of
cheque, Late Siddikannan had preferred a
Complaint No. 2777 of 2006 on 14.09.2006,
under Section 138 of Negotiable Instrument Act,
contending thereof that cheque no. 107059 dated
10.07.2006, which has issued in her favour, upon
it being presented before the Bank for its
encashment. The same was dishonoured, and, as a
consequence thereto, a registered notice was sent
on 25.07.2006. When the amount due to be paid
under the cheque was not remitted, the complaint
has been preferred.
Its that during the pendency of the
proceedings under Section 138 of N.I. Act, that
the principal complainant- Siddikannan has met
with the sad demise, subsequent thereto the Court
of Special Judicial Magistrate-I, Dehradun, vide
its order dated 01.09.2014, in the light of the
judgment of the Karnataka High Court, had
permitted to substitute Mr. Abdul Rehman, as a
person to represent the cause of the complainant.
While giving a challenge to the
summoning order dated 28.09.2006, the C-482
Application has been preferred before this Court
on 05.02.2018 i.e. almost after 12 years, and the
reason which has been given in the C-482
application is that, as per the pleading raised in
Para 5, which is sworn on the basis of the
personal knowledge, that the applicant contends,
that he could not get the information of the above
mentioned case, because of which he could not
take cognizance to summoning order which was
issued against him, to proceed as per law.
The Coordinate Bench of this Court, by
an order dated 06.02.2018, had granted an interim
order and the summoning order has been stayed.
On 29.05.2018, the Coordinate Bench had
extended the interim order and ever since then the
matter was not listed.
The learned counsel for the applicant
had submitted that
(i) there is a probability of settlement
(ii) that owing to the peculiar
circumstances, as to who is the available party,
with whom the settlement could be arrived at. He
could not venture into make any efforts for
settlement and hence, he has expressed his
inability to enter into any settlement as such.
He submits, that particularly, as per the
pleading in C-482 Application also, that the
alleged amount which was sought to be recovered
under the proceedings under Section 138 of N.I.
Act, when the cheque was dishonoured, it was
alleged to be in relation to the security cheque, as
it was handed over to the complainant with the
belief that the same would not be encashed, and
that the amount thus sought to be recovered by
invoking the proceedings under Section 138 of
N.I. Act, is not legally recoverable amount.
The allegations of the C-482
Application, contending thereof that firstly, that
the reasons for delay which has given in Para 5 of
the C-482 Application does not repose
confidence, as it was contended, that the applicant
himself was absconding from the legal
proceedings and the said stand taken by the
respondent in the counter affidavit is a fact not
disputed, or denied by the learned counsel for
applicants by filing rejoinder affidavit.
The learned counsel for the applicant has
filed a rejoinder affidavit on 25.06.2018, wherein,
in response to the pleading raised pertaining to
delayed approach of the Court, as objected by the
respondent in the counter affidavit in Para 7, no
specific reply has been given, rather an evasive
reply has been given to the effect, that the power
of attorney has executed by Late Siddikannan,
also stands cancelled. The said pleading raised in
Para 8 will have no bearing, as far as the present
case is concerned.
The complainant, who got substituted in
fact, is an aged person of 92 years of age.
Entertainment of C-482 Application
after 12 years of issuing of the summoning order
is nothing, but, rather an abuse of process and
harassment itself on complainant, who is pursuing
his remedies for remittance of the amount under
Section 138 of N.I. Act, since 2006.
The jurisdiction of 482 of this Court,
where the Court exercises its inherent
jurisdiction, it has had to balance the equities and
venturing into the proceedings under Section 482
could be only when there is an apparent and
extensive error, misuse or an abuse of the process
resorted to by the Subordinate Court, by issuance
of summoning order which is under challenge,
which may not be the case at hand.
Merely on the ground that the
summoning order dated 28.06.2006, has been put
to challenge after 12 years i.e. in 2018 and
thereafter, continuing to enjoy the interim
order ever since 2018 and filing an Extension
Application, this Court is of the view that the
appropriate recourse, which would have been
available to the applicant would be to place all his
contentions in the complaint proceedings, which
are pending consideration before the Court of
Judicial Magistrate-I (Competent Court),
Dehradun.
This Court in the given set of
circumstances is not inclined to interfere in this
C-482 Application. The same is accordingly
dismissed.
On the culmination of the judgment, the
counsel for the applicant has prayed, that he may
be granted two weeks' time to approach before
the Court and for the period of two weeks, the
NBW, which was stayed by the Coordinate
Bench by its order dated 06.02.2018, would not
be given effect to. The prayer is accepted only for
two weeks from today. It is expected that the
concerned Court would decide the matter within
the time provided under Sub-Section (3) of
Section 143 of Negotiable Instrument Act.
(Sharad Kumar Sharma, J.)
01.04.2023
PN/-
