IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. Nos. 5145-46 of 2009 and
Crl. Misc. No. M-32926 of 2008
Date of decision: January 30, 2009
Chander Hass Sharma
..... Petitioner
Versus
Shiv Kumar
..... Respondent
Present: Mr. Shiv Kumar, Advocate for the petitioner.
****
S.S. SARON, J.
Crl. Misc. Nos. 5145-46 of 2009
The copy of the order dated 10.1.2006 (Annexure P6) passed by the
learned Judicial Magistrate Ist Class, Faridabad and copy of the application dated
3.1.2005 (Annexure P7) submitted to the Incharge, Police Post Tis Hazari, Delhi
attached with the Crl. Misc. applications are taken on record subject to just
exceptions.
Crl. Misc. applications stand disposed of.
Crl. Misc. No. M-32926 of 2008
This petition under Section 482 of the Code of Criminal Procedure
(“CrPC” – for short) has been filed seeking quashing of the complaint (Annexure P1)
titled Shiv Kumar v. Chander Hass Sharma filed by the respondent Shiv Kumar under
Section 138 of Negotiable Instruments Act, 1881 read with Section 420 Indian Penal
Code (“IPC” – for short) and all consequential proceedings arising out of the
complaint including the order dated 18.7.2007 (Annexure P3) in pursuance of which
the application of the petitioner for dropping/closing the proceedings against him has
been dismissed, as not maintainable and also for quashing the order dated 13.9.2008
(Annexure P4) passed by the Additional Sessions Judge, Faridabad dismissing the
Crl. Misc. Nos. 5145-46 of 2009 and [2]
Crl. Misc. No. M-32926 of 2008
revision petition against the order dated 18.7.2007 (Annexure P3) passed by the trial
Magistrate.
The only contention raised by the learned counsel for the petitioner is
that the copy of the complaint and the list of witnesses were not served on the
petitioner with the summons that were issued to him for appearance before the
learned trial Magistrate. It is submitted that the petitioner on being summoned put in
appearance on the first date of hearing i.e. on 10.1.2006 and he was admitted to bail
which is evident from the order dated 10.1.2006 (Annexure P6). However, even
when the petitioner put in appearance, he was not supplied with a copy of the
complaint and list of witnesses. The non-supply of the copy of complaint along with
summons and the list of witnesses, it is stated, vitiates the impugned complaint and
the consequential proceedings. The application filed by the petitioner for dropping
and closing proceedings has wrongly been dismissed as not maintainable and the
learned Additional Sessions Judge, Faridabad, it is submitted, has erred in dismissing
the revision against the said order. It is also submitted that the cheque on the basis of
which the complaint has been filed in fact had been misplaced regarding which an
application dated 3.1.2005 (Annexure P7) was made to the Incharge, Police Post Tis
Hazari, Delhi and it was received by the said Police Post which is evident from the
seal and date on the said application. Therefore, the respondent has misused the
process of the Court in getting the impugned summons issued.
I have given my thoughtful consideration to the matter and with the
assistance of the learned counsel for the petitioner, perused the record. As regards
the fact that the copy of the petition and list of witnesses was not supplied to the
petitioner, it may be noticed that no prejudice is shown to have been caused. Though,
it is the requirement of law that the copy of the complaint and the list of witnesses is
served upon the accused along with summons, however, in the absence of prejudice,
mere non-service of the copy of complaint and list of witnesses with the summons
Crl. Misc. Nos. 5145-46 of 2009 and [3]
Crl. Misc. No. M-32926 of 2008
would not be such a circumstance so as to quash the entire proceedings. On an
application being made in this regard to the learned trial Magistrate, the learned
Magistrate would ensure that the necessary copy of the complaint and list of
witnesses are supplied to an accused who has been summoned. As regards the
cheque being misplaced and an application dated 3.1.2005 (Annexure P7) having
been submitted which has been received by the Police, it may be noticed that the
same is a matter of inquiry which would require to be proved by leading of evidence.
This Court in exercise of its inherent jurisdiction under Section 482 CrPC is not to
embark upon an inquiry and to ascertain whether such an application was indeed
made and if so its effect on the proceedings. This is the domain of the learned trial
Magistrate and the contention as regards the same may, if so advised, be raised
before the said Magistrate. The fact that the trial Court and the learned Additional
Sessions Judge, Faridabad have held the application for dropping the proceedings to
be not maintainable is also inconsequential. The Supreme Court in Sethu Raman v.
State of Maharashtra, 2004 (4) RCR (Crl.) 349 has held that a Court is not
competent to discharge the accused after he has been summoned and a Court
summoning an accused is not to review its own order and that a revision against such
an order would also not be maintainable. In K.K. Patel v. State of Gujarat, 2002 (2)
Apex Court Journal 2004, it was held that in a revision against an interim order, the
feasible test is whether an interim order that has been passed by upholding the
objection raised by a party would result in culminating the proceedings. The feasible
test whether prima facie case is made out or not has been duly considered by the
learned Additional Sessions Judge.
In the circumstances, there is no merit in this petition and the same is
accordingly dismissed.
January 30, 2009 (S.S. SARON) amit JUDGE