Prithivipal Singh Rawat v. Civil Judge (Junior Division) / Judicial Magistrate

Judgment

1. Haldwani, District Nainital. Retd. Major B.K. Thapa, S/o late Sri Trilok Singh Thapa, 2. R/o Lohariasal, Unchanpul, P.O. Kathgaria, Tehsil Haldwani, District Nainital. State of Uttarakhand.

3. (cid:133).(cid:133). Respondents. Present: Mr. Sudhir Singh, Advocate for the applicant. Mr. P.S. Danu, Brief Holder for the State. AND Criminal Misc. Application No. 412 of 2007

Prithivipal Singh Rawat, S/o late Sri Surendra Singh Rawat, R/o Badripura, Haldwani, District - Nainital. (cid:133)(cid:133).Applicant. Versus Additional Chief Judicial Magistrate, Haldwani, District

1. Nainital. Retd. Major B.K. Thapa, S/o late Sri Trilok Singh Thapa, 2. R/o Lohariasal, Unchanpul, P.O. Kathgaria, Tehsil Haldwani, District Nainital. State of Uttarakhand.

3. (cid:133).(cid:133). Respondents. Present: Mr. Sudhir Singh, Advocate for the applicant. Mr. P.S. Danu, Brief Holder for the State. 2 Hon(cid:146)ble Servesh Kumar Gupta, J.

1. At the outset, it is pertinent to mention that none has turned up on behalf of respondent no. 2 despite name of his counsel has been shown in the list, so this Court rendered hearing to learned counsel for the petitioner and learned Brief Holder for the State.

2. Both the above titled petitions are being disposed of together, as the matter in controversy pertaining to payment of cheque issued by Prithivipal Singh Rawat to Major B.K. Thapa is the same, which has been the subject of two different complaints, numbered as criminal case no. 1101 of 2006 and criminal case no. 1323 of 2007. These complaints were instituted by Mr. Thapa against Prithivipal Singh Rawat in the court of Magistrate for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity (cid:147)the Act(cid:148)).

3. The facts of the case are that a Cheque No. 014178 dated 25.01.2006 worth Rs. 1,00,000/- (Rupees one lakh only) was drawn by Mr. Rawat from his banker ICICI Bank, Haldwani and issued to Mr. Thapa in discharge of his pecuniary liabilities. The said cheque was submitted by Mr. Thapa for encashment on 21.02.2006. It has been stated in the criminal case no. 1101 of 2006 that the cheque was dishonoured on 22.02.2006 (next day) on account of insufficiency of fund in the account of Mr. Rawat. When Mr. Thapa complained of, then Mr. Rawat assured for the payment of the said cheque, if it is presented again after waiting for few days.

4. The said cheque was again submitted by Mr. Thapa on some unknown date and the same was dishonoured on

19.07.2006 as has been averred in the criminal case no. 1101 of

2006. In the said complaint strangely it was mentioned that on 3

03.06.2006 a demand notice was sent by Mr. Thapa to Mr. Rawat. Needless to say that this date was apparently wrong because when the said cheque was dishonoured on 19.07.2006 then there was no occasion for Mr. Thapa to send a demand notice 1‰ months ago. The said notice was admittedly delivered to Mr. Rawat on 07.07.2006, so it was incumbent upon Mr. Rawat to make payment within fifteen days, as envisaged under Section 138 (c) of the Act but he did not make any payment so cause of action to file the complaint arose since

23.07.2006 and as envisaged under Section 142 (b) of the Act, the complaint should have been instituted upto 22.08.2006.

5. The photocopy of the criminal case no. 1101 of 2006 has been filed as Annexure no. 1 to the petition no. 231 of 2007 and in the margin of the first page whereof, Magistrate himself made an order (cid:147)Register(cid:148) and below his signature, he has mentioned the date as (cid:147)19/8(cid:148) meaning thereby the complaint was presented before the Magistrate within time.

6. Learned counsel for the petitioner has drawn attention of this Court towards the photocopy of order sheets of criminal case no. 1101 of 2006 (Annexure no. 4 to the petition) in which there is obvious manipulation / interpolation in the date. It appears that the Magistrate completely misconceived by writing the words (cid:147)LUNCH BAAD(cid:148) (cid:147)PUNASCHA(cid:148) reflecting as if the complaint was produced on 19.09.2006 and the same was taken up again after lunch for producing the evidence under Section 202 Cr.P.C. This is perfectly a manipulation either by ministerial staff or by somebody else. But the fact remains that complaint was filed on 19.08.2006 and not on

19.09.2006, so it was well within time. 4

7. The second interesting aspect of the matter is that Mr. Thapa somehow realized his mistakes regarding various relevant dates, so he moved an application on 17.05.2007 before the Magistrate to withdraw the said criminal case with a permission to file fresh one. He also prayed that the summoning order dated 19.08.2006, which was virtually passed on 19.09.2006 should be recalled. The Magistrate passed the order dated 17.05.2007 permitting Mr. Thapa to withdraw the complaint with a liberty to file fresh one with all rectifications.

8. Learned counsel for the petitioner argued that as per provision of Section 257 Cr.P.C., the learned Magistrate could not have permitted Mr. Thapa to file fresh complaint. Section 257 Cr.P.C. reads as under: (cid:147)257. Withdrawal of complaint. If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.(cid:148)

9. From perusal of Section 257 Cr.P.C. it is abundantly clear that if Magistrate permits the complainant to withdraw his complaint, then it was mandatory for him to acquit the accused. If the complaint is so withdrawn, he cannot grant permission to file it again with all rectifications of the facts. The order of the Magistrate in the spirit of Section 257 Cr.P.C. is apparently wrong. Under the shelter of order dated 17.05.2007 passed by the learned Magistrate Mr. Thapa again filed 5 criminal case no. 1323 of 2007 on 21.05.2007 and learned Magistrate took cognizance of the matter on 24.05.2007 for the offence under Section 138 of the Act.

10. For the reasons stated hereinabove the filing of second complaint is barred by Section 257 Cr.P.C. read with Section 300 (1) Cr.P.C., so this way both the petitions have merits and deserve to be allowed. Accordingly, Criminal Misc. Application no. 412 of 2007 is allowed. Order of cognizance dated 24.05.2007 as well as entire proceedings of complaint case no. 1323 of 2007 is hereby quashed. In the above helm of affairs, Criminal Misc. Application No. 231 of 2007 also stands disposed of. The Registry is directed to inform the court below. (Servesh Kumar Gupta, J.) SKS

08.06.2012