Allahabad High Court

Amrendra Singh vs State Of U.P.And Another on 1 July, 2022

Bench: Vikas Budhwar

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. - 43

Case :- APPLICATION U/S 482 No. - 17417 of 2022

Applicant :- Amrendra Singh

Opposite Party :- State Of U.P.And Another

Counsel for Applicant :- Pawan Shukla

Counsel for Opposite Party :- G.A.

Hon'ble Vikas Budhwar,J.

Heard Sri Pawan Shukla, learned counsel for the applicant and learned A.G.A. for the State.

The applicant herein has filed the present application u/s 482 Cr.P.C. for staying the effect and
operation of the Non Bailable warrant dated 31.01.2022 issued by The Court of "Additional
Court of 138 N.I. Act" Muzaffar Nagar, U/s 138 of Negotiable Instrument Act. Police Station-Civil
Lines, District Muzaffar Nagar.

Learned counsel for the applicant has argued that a complaint lodged by the opposite party no.2
being Complaint Case No.825 of 2008 (Sushil Agarwal Vs. Amrendra Singh) wherein 2.6.2007,
the court of Additional Chief Judicial Magistrate II, Muzaffarnagar had summoned the
applicants.

Learned counsel for the applicant has very fairly submitted that he had preferred an Application
U/S 482 No.10964 of 2009, Amrendra Singh Vs. State of U.P. & another in which on 10.5.2017
the following order was passed:-

Heard Shri Pawan Shukla learned counsel for the applicant, Shri Amit Daga learned counsel for
respondent, learned A.G.A for the State and perused the record.

Learned counsel for the applicant contended that the complaint case has been filed by Opposite
Party No. 2 with mala fide intentions despite receiving the entire payment of the cheque amount;
that after allege dishonour of the cheque no notice was served on the applicant and so the
complaint is legally not maintainable and the summoning order passed in the Complaint Case
No. 825 of 2007 is liable to be quashed; that the fact is that applicant had got a work order from
Reliance Company in respect of the advertisement and giving the contract of advertising to the
respondent no. 2; that since the respondent no. 2 did not comply with the terms of the contract
and did not make requisite advertisements within time so Reliance Company terminated work
order given to applicant and consequently the applicant also terminated the contract of
respondent no. 2; that the applicant made payment of Rs. 10 lacs to the respondent no. 2 in
connection with the above contract of advertisement and work done by respondent no. 2 and
since there was some dispute so his settlement agreement was arrived at between the parties
on 11.06.2006 at Annexure-5 and the applicant made payment of Rs. 3,65,320/- to the
respondent no. 2 through three cheques dated 17.08.2006, 02.11.2006 and 05.02.2007 for Rs.
1,65,320/-, Rs. 1,00,000/- and Rs. 1,00,000/- respectively; that in the agreement in term no. 7, it
was also mentioned that both the parties will abide by the terms and conditions narrated in the
settlement agreement executed on 11.08.2006 and there will be no dispute, and they will abide
by the same; that respondent no. 2 has not obeyed the agreement and has filed the complaint
case without service of notice on the applicant and so the proceedings of Complaint Case No.
825 of 2007 are liable to be quashed.

Per contra, learned A.G.A. and learned counsel for respondent contended that the complaint
has been filed by the respondent no. 2 on 14.07.2006 after complying with the provisions of the
Negotiable Instruments Act; that when the cheque was dishonoured, legal notice was given to
the applicant and after due service of notice the complaint has been filed well within time; that
cheque was dishonoured on 03.06.2016 and after service of notice, complaint was filed upon
which after recording the statement of complainant under section 200 Cr.P.C. and considering
the evidence on record, the Learned Magistrate issued process by summoning order dated
02.06.2007; that the alleged settlement agreement is not admissible in evidence and may not be
taken into consideration and moreover the above settlement agreement dated 11.08.2006 is
subsequent to the passing of the impugned summoning order during pendency of the
proceedings before the trial under section 138 N.I. Act and so also the same is not admissible in
evidence; that the impugned cheque which was dishonoured in this case was for Rs. 1,62,898/-
and no cheque of such amount is mentioned in the alleged settlement agreement at annexure-
5; that the allegations about entire amount having been paid by the applicant to the respondent
no. 2 are wrong, incorrect and vague and there is nothing to show that actual payment of the
cheque amount was ever made by the applicant after receipt of notice or any other time before
or after; that factual issues have been raised and if there is evidence regarding payment of the
dispute amount, the same may be adduced by the applicant before the trial court; that it is
wrong to say that the complaint has been filed with wrong and baseless allegations or any mala
fide intentions.

Upon hearing learned counsel and perusal of record, I find that the impugned summoning order
dated 02.06.2007 shows that the learned Magistrate has considered the material on record with
all care and caution and has mentioned the dates of cheque as well as dates of its dishonour
and notice etc.?

It is settled principle of law that in a complaint case after recording the statements of
complainant and witnesses under sections 200 and 202 Cr.P.C. if Magistrate does not find any
prima facie case, it shall reject the complaint case under section 203 Cr.P.C. and if finds
sufficient prima facie case to proceed, it shall take cognizance and issue process under section
204 Cr.P.C. against the accused for trial under relevant sections. The correctness of allegations
made in complaint is to be decided upon evidence during trial and at this stage it may not be
presumed that the contentions made in complaint are wrong or false.

In view of the discussions made above, I find that the learned counsel for applicant has failed to
show any sufficient ground for exercise of inherent powers by this Court so as to prevent the
abuse of process of any court or otherwise to secure the ends of justice and there is no
sufficient ground for quashing the summoning order dated 02.06.2007 (arising out of Complaint
Case No. 825 of 2007, Sushil Agarwal Vs. Shri Amrendra Singh) passed by Additional Chief
Judicial Magistrate, IInd Muzaffar Nagar under section 138 of Negotiable Instrument Act P.S.
Civil Lines, District Muzaffar Nagar. The application is devoid of merits and is liable to be
dismissed.

The application u/s 482 Cr.P.C. is dismissed accordingly.

Interim order, if any, stands vacated."

Learned counsel for the applicant has made a submission at bar now aforesaid criminal case
has made a new Complaint Case No. 1811/2017(CNR No-UPMZ040388012017) the Court of
"Additional Court of 138 N.I. Act" Muzaffar Nagar, (Sushil Agarwal Vs. Amrendra Singh) Mlek
U/s 138 of Negotiable Instrument Act. Police Station Civil Lines, District Muzaffar Nagar.

Learned counsel for the applicant has further argued that he has been falsely implicated and
now non-bailable warrant has been issued in relation to the amount in question.

Sri S.S. Sachan, learned AGA on the other hand has opposed the bail application while arguing
that once the applicant has lost in the previous spate litigation then the present proceedings is
not maintainable particularly when again factual issues have been sought to be argued.

I have heard learned counsel for the parties and perused the record.

I myself find to unable to subscribe the submission so sought to be raised by the learned
counsel for the applicant particularly in view of the fact that already this Court has negated the
claim of the applicant while dismissing the application so preferred earlier. More or less the
factual issues cannot be gone into in the proceedings at this stage.
This Court is of the opinion that offices are made out and the arguments of applicants centers
around the factual issues and the appeals have been unable to show any jurisdictional error in
view of the mandate of the Hon'ble Apex Court in case of M/S Neeharika, Infrastructure Pvt. Ltd.
vs. State Of Maharashtra and others reported in AIR 2021 SC 192 and the paragraph no. 23
culled the following propositions of law which is enumerated hereinunder "i) Police has the
statutory right and duty under the relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first
information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been
observed, in the ''rarest of rare cases (not to be confused with the formation in the context of
death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark
upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the
FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two
organs of the State operate in two specific spheres of activities and one ought not to tread over
the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the
Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the
Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details
relating to the offence reported. Therefore, when the investigation by the police is in progress,
the court should not go into the merits of the allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature to pronounce the conclusion based on hazy
facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of
process of law. After investigation, if the investigating officer finds that there is no substance in
the application made by the complainant, the investigating officer may file an appropriate
report/summary before the learned Magistrate which may be considered by the learned
Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires
the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of
quashing and the self-restraint imposed by law, more particularly the parameters laid down by
this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to
quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it
exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in
the FIR disclose commission of a cognizable offence or not. The court is not required to
consider on merits whether or not the merits of the allegations make out a cognizable offence
and the court has to permit the investigating agency/police to investigate the allegations in the
FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to
be considered by the High Court while passing an interim order in a quashing petition in
exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of
India. However, an interim order of stay of investigation during the pendency of the quashing
petition can be passed with circumspection. Such an interim order should not require to be
passed routinely, casually and/or mechanically. Normally, when the investigation is in progress
and the facts are hazy and the entire evidence/material is not before the High Court, the High
Court should restrain itself from passing the interim order of not to arrest or "no coercive steps
to be adopted" and the accused should be relegated to apply for anticipatory bail under Section
438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in
passing the order of not to arrest and/or "no coercive steps" either during the investigation or till
the investigation is completed and/or till the final report/chargesheet is filed under Section 173
Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case
is made out for grant of interim stay of further investigation, after considering the broad
parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of
the Constitution of India referred to hereinabove, the High Court has to give brief reasons why
such an interim order is warranted and/or is required to be passed so that it can demonstrate
the application of mind by the Court and the higher forum can consider what was weighed with
the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be
adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no
coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be
too vague and/or broad which can be misunderstood and/or misapplied."

On a pointed query, being made to learned counsel for the applicants, as to whether there was
any jurisdictional error committed by the court below, the learned counsel for the applicants
could not point out any jurisdictional error committed by the court below.

Resultantly, in absence of any infirmity or illegality pointed out by the learned counsel for the
applicant, no good ground is made to quash the charge sheet as well as the summoning order,
as even otherwise, this Court find that this is not a fit case wherein inherit jurisdiction power
under section 482 Cr.P.C. 1973, be invoked.

Accordingly, the present application is consigned to record.

However, needless to point out that it is always open for the applicant to prefer appropriate
application before the court below seeking bail and this Court has no reason to disbelieve that
the same shall be considered with most expedition as per the law looking into the magnitude of
the offence and without being obsessed and influenced by any of the observations.

Order Date :- 1.7.2022 piyush