Ajai Kumar Qmar vs Raj Narain and Others

J.P. Semwal, J.—By the present application u/s 482 Code of Criminal Procedure the Applicant has prayed for quashing the complaint bearing No. 1771 of 1982, Raj Narain and R.K. Nayyar v. Ajai Kumar Qmar u/s 420/406 IPC pending against him in the court of METROPOLITAN MAGISTRATE Raipurwa, Kanpur.

I have heard Sri Tapan Ghosh, learned Counsel for the opposite parties as well as Sri A. KMisra, Additional Government Advocate. Though list has been revised twice but none has appeared on behalf of the Applicant.

The grounds taken in the present application interlaid are that the complaint has been filed on false and frivolous grounds and that on the own allegations of the complainant no case u/s 420/406 IPC is made out against the Applicant and at the most It is a case of Civil liability; that the court cannot taken into consideration or peruse already dismissed complaint case while summoning the accused on the basis of second complaint and that the trial court has no jurisdiction to try the complaint as no case of criminal liability is made out against the Applicant.

A written complaint was filed by the opposite parties on 8-12-1982, which specifically mentions at the bottom regarding the earlier complaint which was dismissed In default. This complaint is Annexure ''1'' to the affidavit filed by the Applicant in support of the present application. This complaint has been filed inter alia on the grounds that on 17-2-78 at about 10 a.m. the accused came to the godown of M/s. Siddhanath Daya Shanker at 88/106, Raipurwa, G.T. Road, Kanpur and induced the complainants and Mr. Khan to part with the cinema projector, valued at Ms. 35,000/, one generator, for piston diesel engine make, Burha self start 40 H.P. 1500 RrM alongwith battery valued at Rs 14,000/, one transformer 5 KV single face valued at Rs. 750/ and other necessary accessories and appliance etc. and represented that he would get the same installed and affixed at the said Kumar Palace at village Maudhaha. Distt. Hamirpur and specifically made the representation that the complainants and Mr. Khan would get back the aforesaid things intact and in good condition either at the time of the expiry of the lease deed or whenever the complainants and Mr. Khan would want the same to be back. It is further alleged in the complaint that on the aforesaid assurances from the accused, the complainants and Mr. Khan parted with the aforesaid articles and the accused took the same in a truck on the same day i.e. 17-2-78 for getting the same installed and affixed at the said Kumar Palace. Three other persons also accompanied the accused, ft is further alleged that at the suggestion and ins stance of the accused, the complainant No. 2 took the license from the District Magistrate, Kanpur to run the said Kumar Palace and that the accused in order to further win the confidence of the complainants and Mr. Khan gave a power of attorney in their favour and thereby by his planned acts, deeds and representations he had folly won the confidence of the complainants and Mr. Khan After making further allegations it is asserted that the accused compelled the complainants to close down the aforesaid Kumar Palace on 7-6-78.

It is further alleged in the complaint that after the closure of the said Cinema House, the accused did not allow the complainants and hit. Khan to take the Cinema Projector, generator, diesel engine, transformer and all the other appliances and accessories etc. which were actually owned by the contaminants and Mr. Khan, and that not only this to accessed has removed the said articles from the Kumar Palace surreptitiously and is keeping and concealing the same at his residence at Village Sisolar Maudaha, District Hamirpur. It is further alleged that the accused has caused financial loss to the tone of Rs. 60,000 to the complainants and Mr Khan and male Illegal and wrongful gain for himself.

After recording the statement of the complainants, the accused was summoned by the summoning order dated 20-12-82. It is urged that the accused avoided service for long firm and ultimately he was arrested. Thereafter two witnesses of the complainants were examined u/s 244 Code of Criminal Procedure 2nd 39 documents were also filed. The court after examining the accused framed charges u/s 420/406 IPC. It was at this stage that the Applicant has moved the present application u/s 482 Code of Criminal Procedure as mentioned above.

Sri Tapan Ghosh, learned Counsel for the opposite parties conceded that the first information report had been lodged against the accused on which final report was filed (Annexure-3 to the rejoinder affidavit is the copy of the final report). He also conceded that the earlier complaint was filed on the same facts, which was dismissed in default on 12-7-1982 and that two witnesses u/s 202 Code of Criminal Procedure were examined and 30-10-82 was fixed for the appearance of the accused. On that date due to certain misunderstanding the complainant was about when the case was called out and consequently the said complaint was dismissed in default. These averments find place in para 9 of the counter affidavit of Sri Raj Kumar Nayyar, opposite party.

Since no one had appeared on behalf of the Applicant hence learned Counsel for the opposite parties No. 1 and 2 was called upon to show as to how the second complaint was maintainable in view of the fact that the first complaint on the same facts had been dismissed in default against the provision of Section 249 Code of Criminal Procedure. It is conceded that the procedure of warrant case has to be followed in the present case The offences u/s 420/406 IPC are cognizable and are compoundable with the permission of the court u/s 320(2) Code of Criminal Procedure. The provision for passing orders when the complainant is absent is contained in Section 249 Code of Criminal Procedure in the trial of the warrant case by the Magistrate. Learned Counsel for the opposite parties has urged that Section 249 Code of Criminal Procedure in facts does not apply to the first complaint as the complaint relates to a cognizable offence. He contended that the order of dismissal against the provision of Section 249 Code of Criminal Procedure is a nullity and hence can be ignored by the court on discovery of mistake, in support of thiscon-tention he cited the case of Pritam Singh Vs. State, . Apart from this, it was argued by the learned Counsel that the first complaint was not dismissed on merits and that the second complaint in any view of the matter is not barred. In support of this contention he cited the case of Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, , wherein it has been held that the entertainment of second complaint where the first complaint is dismissed is not barred. Though the said ruling is on dismissal u/s 203 Code of Criminal Procedure but it has laid down the principle to be followed while entertaining the second complaint. According to the Supreme Court, the second complaint will be entertained only in enumerated circumstances i.e. where the provisions order was passed (1) on an incomplete record or (2) on a misunderstanding of the nature of the complaint, or (3) it was manifestly absurd, unjust or foolish or (4) where new facts which could not with diligence have been brought on the record in the previous proceedings have been adduced Learned Counsel urged that the case of the complainant is covered by ground no (3) as the order of the Magistrate dismissing the first complaint was manifestly absurd and against the provisions of Code of Criminal Procedure.

After considering the submissions and provision of law. I agree with the learned Counsel that the second complaint is not barred in the present case on the facts and circumstances stated above.

Now I come to the present application it has to be seen whether the Inherent jurisdiction u/s 482 Code of Criminal Procedure should be invoked in the present case The power u/s 482 Code of Criminal Procedure is extraordinary. It can be invoked only to prevent the abuse of process of court on otherwise to secure the ends of justice. No doubt, If it suffers from legal defects, such as want of sanction or the complaint is not by competent person, the High Court may invade inherent jurisdiction u/s 482 Code of Criminal Procedure. The main ground taken by the Applicant is that on the allegations made in the complaint it is a case of civil liability. I have perused the complaint which is Annexure "I" to the affidavit of the Applicant Paragraphs 7 to 19 prima facie disclose the commission of the offence u/s 420/406 IPC. No doubt, on the same facts there may be civil liability but that by itself is no ground for quashing the complaint which itself discloses the criminal offence.

In view of the foregoing discussion, I do not find any substance in the present application and there is no ground for invoking inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure Accordingly the present application u/s 482 Code of Criminal Procedure is hereby dismissed The interim order dated 28-2-1984 is vacated.