N CH TA L Cr sc. ca . Pradeep Kum ar Jain v. Pradeep Kum ar Jain and anot her u/ s 138 of N.I

The accused No. 1 refused t o receive t he not ice sent under regist ered A.D. but he has received t he said not ice which w as sent under U.P.C. as t he not ice, sent under U.P.C., has not ret urned. The com plaint was filed w it hin t he st ipulat ed per iod and t he applicant exam ined him self u/ s 200 Cr.P.C. and t hereaft er cognizance was t aken by t he Magist rat e against t he accused- applicant . Feeling aggr ieved by t he com plaint as well as t he sum m oning order, t he present pet it ion has been filed. Learned counsel t he pet it ioner cont ended t hat t he im pugned order is bad in law and t he learned Magist rat e has passed t he said order w it hout consider ing t he fact s and circum st ances of t he case and w it hout going t hrough t he m at erial available on recor d. The learned counsel for t he applicant furt her cont ended t hat t here is legal ev idence in support of t he prosecut ion and only t he phot ocopies were filed.

I t was furt her cont ended t hat t he com plaint does not indicat e as t o when t he said not ice was refused by t he applicant . Learned counsel for t he applicant furt her cont ended t hat he never refused t o t ake t he not ice. I t was furt her cont ended t hat t he com plainant should have m ent ioned t he dat e of t he service of t he not ice by refusal. Learned A.G.A. refut ed t he cont ent ion. Perusal of t he record reveals t hat t he com plaint was filed before t he court and t hereaft er t he applicant was exam ined u/ s 202 Cr.P.C. He has also support ed t he version on oat h indicat ing in t he com plaint . The phot o copies filed alongw it h t he com plaint is only support ing docum ent at t he t im e of t ak ing of t he cognizance. The com plainant can file t hese papers dur ing t he ev idence. The com plainant had t he libert y t o adduce t hese ev idence at t he st age of t he t r ial whereas t he dat e of t he not ice is concerned, it is also a fact ual quest ion and it can only be decided aft er adducing t he evidence by t he com plainant . U/ s 482 Cr.P.C. t his court cannot ent er int o t he cont r oversy as t o whet her t he allegat ions m ade in t he com plaint are support ed by t he oat h is correct or t he version as has been indicat ed in t he pet it ion is correct . The power of t his Court under sect ion 482 Cr.P.C. is very lim it ed.

I f t he allegat ions set out in t he com plaint do not const it ut e t he offence of which cognizance has been t aken by t he Magist rat e, it is open t o t his Court t o quash t he sam e in exercise of t he inherent powers under sect ion 482 Cr.P.C. I t is not , however, necessar y t hat t here should be m et iculous analy sis of t he case by t he Magist rat e t o find out whet her t he case would end in conv ict ion or acquit t al. The com plaint has t o be read as a whole. I f it appears t hat on considerat ion of t he allegat ions in t he light of t he st at em ent m ade on oat h of t he com plainant t hat t he ingredient s of t he offence or offences are disclosed and t here is no m at erial t o show t hat t he com plaint is m ala fide, fr ivolous or vexat ious, in t hat event t here would be no j ust ificat ion for int erference by t his Court . The High Court would not ordinar ily em bark upon an enquiry whet her t he evidence in quest ion is reliable or not or whet her on a reasonable appreciat ion of it accusat ion would not be sust ained.

That is funct ion of t he t rial court . { Se e St a t e o f K a r n a t a k a V s. M . D e v e n d r a p p a & a n o t h e r 2 0 0 2 ( 2 ) SB R p / 1 5 1 } . I t has been held in M . N a r a y a n d a s V s. St a t e o f K a r n a t a k a 2 0 0 4 Cr i .L.J. p / 8 2 2 t hat it is set t led law t hat t he power t o quash a crim inal proceeding m ust be exercised ver y spar ingly and w it h cir cum spect ion. I t m ust be exercised in t he rarest of rare cases. I t is also set t led law t hat t he court w ould not be j ust ified in em bar k ing upon an enquiry as t o t he reliabilit y or genuineness or ot herw ise of t he allegat ions m ade in t he FI R or t he com plaint . The Court also cannot inquire whet her t he allegat ions in t he com plaint are likely t o be est ablished or not . I t is not perm issible for t he High Court t o look int o m at er ials, t he accept abilit y of which is essent ially a m at t er of t r ial.

While exercising j ur isdict ion under sect ion 482 Cr.P.C., it is not possible for t his Court t o act as if it is a t rial court . { St a t e o f M .P. Vs . A w a d h K i sh o r e Gu p t a a n d o t h e r s SCC ( Cr i ) 2 0 0 4 p / 3 5 3 } . I n v iew of t he above discussion, I am of t he v iew t hat t he pet it ion is dev oid of m er it is liable t o be dism issed and t he sam e is accordingly dism issed. I t was furt her request ed by t he learned counsel t he applicant t hat t he personal at t endance of t he applicant m ay be exem pt ed during t he t r ial. Learned counsel for t he applicant relied upon t he j udgm ent of t he Apex Court rendered in 2 0 0 5 SCC ( Cr i ) S.V. M u z u m d a r a n d o t h e r s V s. Gu j r a t St a t e Fe r t i l i z e r Co . Lt d . a n d o t h e r s. The applicant m ay file applicat ion before t he t rial court for personal exem pt ion u/ s 205 Cr.P.C. and t he learned Magist rat e aft er going t hrough t he j udgm ent of t he Apex Court can consider t he cir cum st ance of t he case and pass t he suit able order in light of t he observat ion m ade in t he j udgm ent of t he Apex Court . 4 t h April, 2006 Shiv ( J. C. S. Ra w a t , J.)