C482/664/2011 of RANDHIR WALIA Vs STATE OF UTTARAKHAND AND ANR

C482 No 664 of 2011

U.C. Dhyani, J.

Mr. Siddhartha Singh, Advocate for the applicant.

Ms. Geeta Parihar, Brief Holder for the State.

Mr. Pawan Mishra, Advocate for the respondent no. 2.

On the last occasion, learned counsel for the respondent no. 2 was requested to seek instructions from his client as to whether he wants to proceed with the complaint case under Section 138 of Negotiable Instruments Act or not?

This order was passed on the submission of learned counsel for the applicant that the entire money has been deposited by the applicant before the trial court, as directed by this Court vide order dated 09.08.2011.

Learned counsel for the respondent no. 2 submitted that he has not been able to seek instructions from his client.

When the application under Section 482 Cr.P.C. was taken up, this Court passed the following order on 09.08.2011:-

“3. Learned counsel for the petitioner states that the petitioner who is an accused in the aforesaid criminal complaint case is ready to pay the amount mentioned in the cheque issued in fovour of the complainant (present respondent no. 2), which was said to have been dishonoured.

5. Meanwhile it is directed that if the petitioner makes payment of an amount of Rs. 35,000/- to the complainant M/s Hanspushpak Irrigation Systems (respondent no. 2) or deposits in his favour within period of ten days, the proceedings of the criminal complaint case no. 7510 of 2010, M/s Hanspushpak vs. Randhir Walia, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending in the court of Additional Chief Judicial Magistrate-I, Dehradun, shall remain stayed till the next date of listing. If said amount is not paid to the complainant

or not deposited in his favour before the trial court within the time allowed, this order shall automatically stands vacated after ten days from today.”

Accordingly, documents have been filed on behalf of the applicant to show that he has deposited Rs. 35,000/- in favour of respondent no. 2 through demand draft and the respondent no. 2 has withdrawn the said amount.

There seems to be substance in the contention of learned counsel for the applicant.

It will be futile exercise to keep present petition under Section C-482 Cr.P.C. pending in the peculiar facts of this case.

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.

When the foundation of criminal offence is not laid against the present applicant, the Court can intervene in exercise of jurisdiction under Section 482 Cr.P.C.

The petition under Section 482 of Cr.P.C. is, therefore, allowed. The proceedings of summoning order dated 15.12.2010, in criminal complaint case no. 7510 of 2010, M/S Hanspushpak vs Randhir Walia, under Section 138 of Negotiable Instrument Act, pending in the Court of Additional Chief Judicial Magistrate 1[st], Dehradun are hereby quashed.

Liberty is granted to respondent no. 2 to move for recall of this order, if subsequently the facts are found otherwise.

(U.C. Dhyani, J.

27.04.2017