Deepak Singh Bisht v. Hira Singh Negi, as well as the judgment and order dated

Aggrieved by the said judgment and order dated

06.12.2021, respondent-Deepal Singh Bisht preferred a Criminal Revision No. 04 of 2022 Deepak Singh Bisht Vs. Hira Singh Negi and Another, before the learned Sessions Judge, Chamoli, which was allowed and remanded back to learned Judicial Magistrate, Gopeshwar with a direction to make a deeper legal investigation on the matter and pass afresh legal order warranted under law by engaging itself in reconsideration in terms of above analysis, vide judgment and order dated 16.08.2023.

5. Thereafter, learned Judicial Magistrate, Gopeshwar restored the said Criminal Case No.369 of 2021 Deepak Singh Bisht Vs. Hira Singh Negi, to its original number in compliance of judgment and order dated

16.08.2023 passed by learned Revisional Court, consequent thereto, order dated 25.09.2023 and impugned summoning order dated 02.02.2024 was passed by the 2 learned Judicial Magistrate, Gopeshwar. Thus, applicant is before this Court by challenging the impugned order dated 25.09.2023 passed by learned Judicial Magistrate, Gopeshwar and impugned judgment and order dated 16.08.2023 passed by learned Revisional Court.

6. Learned counsel for the applicant submits that the present case at hand is glaring example of abuse of process of law, where, the complaint filed by respondent is devoid of mandatory of statutory law and said judgment rendered by learned Revisional Court is also against the provisions of law. The complaint filed by the respondent is completely bogus and fictitious devoid of merit, hence, the impugned judgments and orders are liable to quash in the interest of justice.

7. Learned counsel the applicant further submits that before filing the complaint under Section 138 of the Act, the mandatory notice as required under Section 138(b) of the Act, has not been issued by respondent to applicant.

8. Learned counsel for respondent submits that the notice has been issued to the applicant under the provision of Section 138 (b) of the Act on 10.09.2021.

9. In reply to this submission of learned counsel for the respondent, learned counsel for the applicant stated that the said notice was issued upon the wrong address of the applicant, therefore, the requirement of provision of the Act has not been fulfilled.

10. I have heard learned counsel for the parties at length and perused the entire material available on record. The notice, which has been issued by the respondent to applicant, was sent upon the correct address of applicant, which is duly annexed by learned counsel for the applicant itself as Annexure No.2 to the present C482 Application. 3 The notice was sent by the respondent to the applicant on the same address as mentioned by him in the cause-title/ memo of party of this C482 application. Thus, he cannot submit that this was not sent on correct address. Such attempt of learned counsel for the applicant is nothing but to delay the proceedings of the case and to scuttle it in between. In view of the law laid down in the case of Neeharika, Infrastructure Private Limited Vs. State of Maharashtra and others reported in (2021) 19 SCC 401, it has been held by the Hon’ble Apex Court that criminal case shall not be scuttled at the initial stage. Relevant sub- paras of Para 33 of the said judgment are quoted hereunder:- the allegations made “33.4) 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). 33.5) 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 FIR/complaint; 33.6) Criminal proceedings ought not to be scuttled at the initial stage; 33.15) 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;

11. After keeping the above principle in mind, this Court is of the opinion that, this Court cannot enter into factual aspects of the case at this stage. Veracity of the version of prosecution can only be proved during trial, after both the parties would adduce their respective evidences.

13. PN PREETI NEGI DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=63c75a8c4765581180a58d7478fadbe38331bac55 c78b5f9f0276c16432f6aab, postalCode=263001, st=UTTARAKHAND, serialNumber=2BA53171893B3C3CB3CCCAE81FAE064498 483A83D84BDB0F9229D5BF08D959AC, cn=PREETI NEGI Accordingly, the C482 application is dismissed. Interim order dated 19.03.2024 stands vacated. (Pankaj Purohit, J.)

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