Arvindra Pal Singh vs Himmat Sing

Hon''ble U.C. Dhyani, J.—Heard learned counsel for the petitioner and perused the papers on record. By way of this petition, moved u/s 482 of Cr.P.C., the petitioner seeks quashing of the order dated 3rd October 2011, passed by Special Judicial Magistrate (CBI), Dehradun in Criminal Case No. 2405 of 2011 Himmat Singh vs. Arvindra Pal Singh, by which the learned Magistrate summoned the accused to face trial in respect of offence punishable u/s 138 of the Negotiable Instruments Act.

2) A complaint was filed in the court of learned Magistrate by complainant Himmat Singh against the present petitioner Arvindra Pal Singh with the allegation that a sum of Rs. 20,000/- is still due against him and the petitioner has committed an offence punishable u/s 138 of the Negotiable Instruments Act. Initially, Arvindra Pal Singh (present petitioner) took a sum of Rs. 1,20,000/- from the complainant Himmat Singh. A part payment was already made by the petitioner to the complainant and according to the complainant himself, only a sum of Rs. 20,000/- is outstanding against the present petitioner as of now.

3) An order was passed by Special Judicial Magistrate (CBI), Dehradun, whereby accused Arvindra Pal Singh was summoned to face trial in respect of offence punishable u/s 138 of the Negotiable Instruments Act. It was also directed that the complainant should take steps u/s 204 of Cr.P.C. within a week from the date of passing of the said order.

4) Learned Special Judicial Magistrate (CBI), Dehradun in her order dated 3rd October 2011, mentioned the complaint case in brief and also said that the complainant issued a notice to the accused through his counsel but the accused did not pay the balance despite service of such notice upon him. Learned Magistrate has given reasons for summoning the accused-petitioner as regards offence punishable u/s 138 of the Negotiable Instruments Act. There seems to be no illegality in the said order. Only a prima facie case is to be seen at the stage of summoning the accused. Learned Magistrate having found a prima facie case against the accused, summoned present petitioner to face the trial. There is therefore, no reason to interfere with the said order.

5) Hence, this court finds no reason to quash the order dated 03.10.2011, passed by Special Judicial Magistrate (CBI), Dehradun or to quash the proceedings of the Criminal Case No. 2405 of 2011, Himmat Singh vs. Arvindra Pal Singh, pending before the said court.

6) Learned counsel for the petitioner argued that the Magistrate did not comply with the provisions of sub Section (2) of Section 204 of Cr.P.C. It says:

(2) No summons or warrant shall be issued against the accused under sub Section (1) until the list of the prosecution witnesses has been filed.

7) A bare reading of sub Section (2) of Section 204 of Cr.P.C. suggests that said sub Section does not create a bar while passing the order for summoning the accused. It creates a bar only when the summons or warrant is required to be issued by the trial court. Moreover, it is satisfactory compliance of said sub section, if names of the witnesses are mentioned in the complaint itself. The proceedings u/s 138 of the Negotiable Instruments Act are primarily based on the documentary evidence and the oral evidence, if any, has only a supporting role to play in it. Thus the said argument does not help the petitioner in any way.

8) Learned counsel for the petitioner also submitted that the impugned order is a non-speaking order. A perusal of the impugned order suggests that it is otherwise. Only brief facts along with the reasons were required to be mentioned by the learned Magistrate in her order while summoning the accused and she has done exactly the same.

9) Otherwise also, from perusal of the material on record and looking into the facts of the case, it cannot be said at this stage that no offence is made out against the petitioner. The submissions made by learned counsel for the petitioner relate to the disputed questions of fact, which cannot be adjudicated upon by this court u/s 482 of Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. The State of Punjab, ; State of Haryana vs. Bhajan Lal, 1992 SCC (Crl) 426; State of Bihar vs. P.P. Sharma, 1992 SCC (Crl) 192 and Zandu Pharmaceuticals Works Ltd. vs. Mohd. Saraful Haqe and another, 2005 SCC (Crl) 283 (para 10).

10) In view of the above, this court is of the opinion that there is neither any reason to quash the impugned order dated 03.10.2011 passed by learned Special Judicial Magistrate (CBI), Dehradun nor any reason to quash the proceedings of Criminal Case No. 2405 of 2011, Himmat Singh vs. Arvindra Pal Singh, pending before the said court. With these observations, the petition u/s 482 of Cr.P.C. is disposed of summarily at the admission stage itself.