Supreme Court - Daily Orders
Vijay Kumar Singh vs State Of U.P. on 12 February, 2015
Bench: Dipak Misra, Adarsh Kumar Goel
Crl.A.2158/09
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2158 OF 2009
Vijay Kumar Singh Appellant (s)
Versus
State of U.P. and Another Respondent(s)
O R D E R
Heard Mr. V.K. Shukla, learned counsel for the appellant and Mr. R.K. Dash, learned senior counsel for the State of U.P. Despite service of notice, the respondent No.2, the complainant, who had instituted Complaint Case No.1692 of 2006 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, 'the Act') and Sections 420, 467 and 468 of the Indian Penal Code, has remained absent.
It is submitted by Mr. Shukla that the learned Magistrate has fallen into error by taking cognizance in respect of the offences. It is urged by him that at best cognizance could have been taken in respect of the offence Signature Not Verified under Section 138 of the Act. Learned counsel has invited Digitally signed by Chetan Kumar Date: 2015.02.16 17:06:22 IST Reason: our attention to the complaint filed by the respondent No.2. Mr. Dash, learned senior counsel appearing for the State has Crl.A.2158/09 2 submitted that the State is a proforma respondent, but, however, the order of cognizance taken in respect of offences under the Indian Penal Code may not be justified, but as far as the order relating to cognizance under Section 138 of the Act is concerned, it cannot be found fault with.
At this juncture, it is appropriate to refer to the order passed by this Court on 16th November, 2009. It reads as under:
“Despite service no one appears for the contesting respondents.
Delay condoned.
Leave granted.
In the meanwhile, trial in complaint Case No.1692 of 2006 entitled Vikrant Singh vs. Vijay Kumar Singh pending in the Court of Metropolitan Magistrate, Kanpur City in respect of offences under Section 420, 467 and 468 of the Indian Penal Code shall remain stayed.
We may clarify that insofar as trial for offence under Section 138 of the Negotiable Instruments Act is concerned, the same shall continue.” In our considered opinion, the cognizance order is absolutely sound as far as it pertains to the offence under Section 138 of the Act is concerned, but as far as the offences under the Indian Penal Code are concerned, no offence is made out and the learned Magistrate has committed grave error in taking cognizance in respect of the same. Therefore, we set aside the order taking cognizance in Crl.A.2158/09 3 respect of the offences under the Indian Penal Code.
As directed by this Court on the earlier occasion, the proceeding was required to continue in respect of the offence under Section 138 of the Act. If the case has been finalized, the matter would rest there, but if it is still pending, the learned Magistrate will be well advised to proceed with case under Section 138 of the Act and deal with it in accordance with law. Be it noted, when we have said that the cognizance order does not warrant interference, it is an opinion, which is expressed for sustaining the order of cognizance, but by no stretch of imagination, it should be taken note of during the trial.
The appeal is allowed to the extent indicated above and resultantly, the orders passed by the learned Magistrate and the High Court stand modified.
....................J. [Dipak Misra] ....................J. [Adarsh Kumar Goel] New Delhi February 12, 2015.Crl.A.2158/09
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ITEM NO.2 COURT NO.6 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No.2158 of 2009
VIJAY KUMAR SINGH Appellant(s)
VERSUS
STATE OF U.P. & ANR. Respondent(s)
Date : 12/02/2015 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE ADARSH KUMAR GOEL For Appellant(s) Mr. V.K. Shukla, Adv.
Mr. A.K. Tripathi, Adv.
Mr. K. K. Mohan, AOR For Respondent(s) Mr. Ratnakar Dash, Sr. Adv.
Mr. Adarsh Upadhyay, AOR UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed order.
(Chetan Kumar) (H.S. Parasher)
Court Master Court Master
(Signed order is placed on the file)