C482/1239/2012 of SANJAY KUMAR AGARWAL Vs STATE OF UTTARAKHAND AND ANR

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 1239 of 2012 (Under Section 482 Cr.P.C.)

Sanjay Kumar Agarwal

….…… Applicant

versus

State of Uttarakhand and Another ………. Respondents

Mr. P.K. Chauhan, Advocate for the applicant. Mr. Prem Kaushal, Brief Holder for the State. None is present on behalf of the respondent no.2, despite service of notice.

U. C. Dhyani, J. (Oral)

By means of present application under Section 482 Cr.P.C., applicant seeks to quash the summoning order dated 06.05.2006, under Section 138 of Negotiable Instrument Act, passed by the Chief Judicial Magistrate, Dehradun in Complaint Case No.648 of 2010 (Pradeep Kumar Gupta vs. Sanjay Kumar Agarwal), pending in the Court of Special Judicial Magistrate 1[st], Dehradun, District-Dehradun.

2. The accused has been summoned to face the Trial for the offences punishable under Section 138 of Negotiable Instrument Act. The criminal complaint case was by the respondent no.2. Interim order was granted by the coordinate Bench of this Court vide order dated 20.11.2012.

3. It is the submission of the learned counsel for the applicant that the respondent never took steps for service of notice upon the applicant on his address and as such the notice was never served upon him. In the instant case, the debt or liability, if any (though not admitted) were only towards Ankit son of Pradeep Kumar Gupta and not against Pradeep Kumar Gupta (complainant) and therefore, the complainant had no authority to file present complaint under Section 138 Negotiable Instrument Act, which was not maintainable. Other grounds for challenging the summoning order had been taken in

application under Section 482 Cr.P.C., the Court need not to elaborate them.

4. Notice was issued to respondent no.2, but none has turned up on his behalf.

5. It appears that the complainant is not interested in prosecuting the accused-applicant.

6. At the time of admission of present C-482 petition, this Court passed an interim order, vide order dated 20.11.2012, and stayed the complaint case initiated against applicant under Section 138 of Negotiable Instrument Act, pending in the Court of Special Judicial Magistrate 1[st], Dehradun, District-Dehradun, till the next date of listing.

7. There seems to be substance in the contention of leaned counsel for the applicant that the criminal proceedings initiated against the applicant are nothing but abuse of process of the Court.

8. It will be futile exercise to keep present petition under Section C-482 Cr.P.C. pending in this Court.

9. The Court can intervene in exercise of jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law, as has been held by Hon’ble Apex Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330, Amit Kapoor vs. Ramesh Chander and another, 2013 (1) SCC (Crl.) 986 and Inder Mohan Gosami and another vs. State of Uttarakhand and others, (2008) 1 SCC (Crl.) 259.

10. The petition under Section 482 Cr.P.C. is, therefore, allowed. The summoning order dated 06.05.2006, under Section 138 of Negotiable Act, passed by the Chief Judicial Magistrate, Dehradun in Complaint Case No.648 of 2010 (Pradeep Kumar Gupta vs. Sanjay

Kumar Agarwal), pending in the Court of Special Judge Magistrate 1[st], Dehradun, District-Dehradun, are hereby quashed.

11. Since present application under Section 482 Cr.P.C. is being decided in the absence of respondent no.2, therefore, liberty is granted to him to move for recall of this order, if he feels aggrieved with the same.

A.kaur

(U. C. Dhyani, J.)

29.06.2017