ORDER
1. These petitions have been filed by the accused under Section 482 of the Cr. P.C. to set aside the order dated 13-8-1996 passed by the IX Additional Chief Metropolitan Magistrate, Bangalore in C.C. Nos. 20925 to 20933 of 1996 ordering registration of the case against the petitioner/accused person for the offence punishable under Section 138 of the Negotiable Instruments Act (‘the Act’ for short).
2. Heard the learned Counsel for the petitioner/accused and the learned Counsel for the respondent/complainant in all the cases.
3. Briefly stated the facts of the cases arc that the petitioner issued cheque in favour of the respondent which came to be dishonoured when presented before the Bank and the petitioner has not chosen to pay the
amount. The respondent filed private complaint before the IX Additional Chief Metropolitan Magistrate, Bangalore City. The learned Magistrate, presumably after taking the cognizance of the offence, recorded the sworn statement of the complainant and directed registration of the case for the offence under Section 138 of the Act. The petitioner moved the learned Sessions Judge, Bangalore invoking his revisional jurisdiction and the learned Sessions Judge did not choose to interfere with the order passed on 25-2-1997 and hence the present petitions have been filed to set aside the order passed by the DC Additional Chief Metropolitan Magistrate, on 13-8-1996.
4. It is to be noted that in the prayer, there is no relief claimed to set aside the order passed by the learned Sessions Judge in the revision. However, these petitions are filed under Section 482 of the Cr. P.C. invoking the inherent power of this Court to set aside the order of the IX Additional Chief Metropolitan Magistrate, Bangalore City.
5. The learned Counsel for the respondent has urged in all these cases that as criminal revision petitions were filed by the respondent before the learned Sessions Judge and they were dismissed. But the petitioner has not prayed for setting aside the order passed in criminal revision petition and has filed the present petitions under Section 482 of the Cr. P.C. and the petitions are not maintainable even on that ground also they have to be rejected.
6. The learned Counsel for the respondent has relied on the following decisions:
(i) In KB. Santhosh and Others v Sebastin Joseph and Another, wherein it has been held that the Magistrate proceeded to record statement is indicative of prior cognizance being taken.
(ii) In KS. Thimmappa Rai v A.H. Sadananda, it has been held that even though the Magistrate proceeded to record the sworn statement of the complainant without recording that he has taken the cognizance of the offences it is clearly indicative of the fact that he has decided to proceed under Chapter XV of the Code and therefore he is deemed to have taken cognizance of the offence.
(iii) In Krishnan and Another v Krishnaveni and Another, this decision is also relied on by the learned Counsel for the petitioner in 1997(1) Supreme 628. It is held that in view of the principle laid down in the maxim ex debito justitiae, i.e., in accordance with the requirements of justice, the prohibition under Section 397(3) on revisional power given to the High Court would not apply when the State seeks revision under Section 481. So the State is not prohibited to avail the revisional power of the High Court under Section 397(1) read with Section 401 of the Code. Though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of
the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice.
The power of the High Court of continuous supervisory jurisdiction under Section 483 is of paramount importance to examine correctness, legality or propriety of any finding, sentence or order, recorded or passed as also regularity of the proceedings of all inferior Criminal Courts.
The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent miscarriage of justice. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to met out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process of miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its judicial process or illegality of sentence or order.
When revision has been barred by Section 397(3) of the Code, a person accused/complainant cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. However, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. It may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out.
(iv) In Y. Krishnamurthy v Sharanappa, wherein it has been held that the inherent power can be exercised only for the purposes specified in this section and cannot be invoked in respect of any matter covered by any other specific provision of the Code. Such a power is required to be sparingly used and not liberally invoked. The inherent power has to be distinguished from the appellate power vested in a Superior Court. Such a power can be used where it manifestly appears that there was a legal bar against the institution or continuance of the criminal proceedings in respect of the alleged offence.
During the course of the order it has been observed that however, in exercising its jurisdiction under Section 482, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not which is the function of the trial Magistrate. In such cases, the Supreme Court held that where the allegations made against the petitioner in the FIR or the complaint prima facie constitute certain offence alleged against him, there was no legal bar to the institution of the proceedings commenced on the FIR or the complaint and their continuance. The section only preserves the inherent power of this Court without conferring any additional powers. Such a power can be used where it manifestly appears that there was a legal bar against the institution of continuance of the criminal proceedings in respect of the alleged offence, where the allegation in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged or where the allegation against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case of the evidence adduced clearly or manifestly fails to prove the charge.
(v) The learned Counsel for the respondent has referred to the order passed in Siddique Mohiddin Faisal and Others v Dr. Kshounish Chandra Nag, wherein it has been observed that the Trial Court without looking to the materials on record could not issue process as the parties are at logger heads in view of a civil dispute and the complainant has taken the step of lodging a complaint to force his opponent to come to terms and hence the Court has set aside the criminal proceedings in C.C. No. 406 of 1995 on the file of the Chief Metropolitan Magistrate, Bangalore, on the facts and circumstances of the case.
7. No doubt, though the criminal revision petitions were filed by the petitioner against taking cognizance under Section 138 of the Act and the learned Sessions Judge has observed that all the matters can bo urged before the Trial Court and the criminal revision petitions filed by the present petitioners were dismissed and without seeking for setting aside the order passed in the criminal revision petitions by the learned Sessions Judge, the petitioner has invoked Section 482 of the Cr. P.C. to set aside the order passed by the DC Additional Chief Metropolitan Magistrate, Bangalore though can be said as maintainable before this Court, but in the circumstances of the case, as seen from the various decisions,
the grounds urged by the petitioners that the sworn statement has not been signed by the petitioner as seen from the case records, they have been signed and also the learned Magistrate has after recording the sworn statement, issued the process finding that prima facie case is made out cannot be said in the circumstances, there is any abuse of process of law and miscarriage of justice which has to be interfered with from the orders passed by the learned IX Additional Chief Metropolitan Magistrate, Bangalore and also it is to be noted in the rarest of the rare cases interference under Section 482 of the Cr. P.O. can be made only when it is manifest that on the allegations made in the complaint itself, there is specific bar under the provisions of Code of Criminal Procedure to take cognizance or no offence has been made out from the allegations made in the complaint. If the learned Magistrate has issued process in such cases, this Court can interfere with, the order passed by the lower Court. During the course of the order the learned Sessions Judge has observed that the contentions raised in the petitions can be urged before the learned Magistrate at the proper time.
8. Under the circumstances, the present petitions filed under Section 482 of the Cr. P.C. by the petitioners to set aside the order of the learned IX Additional Chief Metropolitan Magistrate, Bangalore for registering cases of the offence under Section 138 of the Negotiable Instruments Act cannot be said to suffer from any failure of justice or abuse of process of law to be interfered with.
9. Accordingly, all these petitions fail and the same are dismissed.
