Allahabad High Court
Kusum Devi vs State Of U.P. And Another on 13 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- APPLICATION U/S 482 No. - 5151 of 2023 Applicant :- Kusum Devi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Brijesh Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.
Heard Mr. Brijesh Kumar Mishra, learned counsel for the applicant, the learned A.G.A. for the State as well as perused the entire material available on record.
This application under Section 482 Cr.P.C. has been filed for quashing the order dated 19th January, 2023 passed by the Civil Judge (Senior Division), F.T.C. Room No. 1/Additional Chief Judicial Magistrate, Deoria on an application dated 16th December, 2022 arising out of Complaint Case No. 14100 of 2021 (Kusum Devi Vs. Mithilesh) under Section 138 N.I. Act, Police Station-Kotwali Deoria, District-Deoria.
Brief facts as borne out from the records of the present application are that the applicant/ complainant filed complaint against the opposite party no.2 on 20.09.2019 in the court of Civil Judge (J.D.) Court no. 24, Deoria alleging therein that in May, 2019 the opposite party no.2 had taken Rs. 2 lacs as loan from the applicant with an assurance to refund the same within two months. It is further alleged that after lapse of such time when the applicant/complainant demanded the said money from opposite party no.2, on 19.08.2019 she had given cheque no. 145372 amounting to Rs. 40,000/-, cheque no. 145373 amounting to Rs. 40,000/-of State Bank of India & cheque no. 145371 amounting to Rs. 15,000/- of same bank dated 20.08.2019 and on 21st August, 2019 the applicant/complainant deposited the same in her Account no., 11171307559 maintained in the State Bank of India Branch Raghav Nagar, Deoria which was returned on same day i.e. 21.08.2019 by the Bank due to insufficient balance. Information in this regard was given by the complainant to the accused opposite party no. 2 and she has also sent a legal notice and ultimately filed complaint under section 138 N.I. Act. On the complaint filed by the applicant/complainant dated 20.09.2019 the concerned Magistrate took cognizance and the same has been numbered as Complaint case no. 14100 of 2021 (Kusum Devi Vs. Mithilesh) and opportunity of statement of complainant/applicant came to an end under section 244 Cr.P.C. and the proceeding of 313 Cr.P.C. is also completed.
It is further the case of the applicant/complainant that she has moved an application on 16.12.2022 before the court below seeking opportunity for producing evidence under section 244 Cr.P.C. in order to prove the averments of complaint qua cheques, legal notice and complaint. To the said application, the accused / opposite party no. 2 has filed his objection on 13.01.2023. The court below i.e. Civil Judge (S.D.) F.T.C. Room No. 1/ Additional Chief Judicial Magistrate, Deoria vide order dated 19.01.2023 rejected the application of applicant/complaint dated 16.12.2022. It is against this order that the present application under Section 482 Cr.P.C. has been preferred by the applicant.
While passing the impugned order the court below has recorded its finding that the accused Mithilesh Devi was summoned by the court below on 11.12.2019 for examination under section 138 N.I. Act. The accused appeared in the court and obtained her bail and on 21.09.2021 the statement of the accused was recorded as accused. The statement of the applicant/complainant in her examination-in-chief was recorded on 15.03.2022, whereas statement in her cross-examination has been recorded on 26.03.2022. The statement of the accused/opposite party no.2 under Section 313 Cr.P.C. was recorded on 22.08.2022. It has further been recorded that at that stage, through an application, the complainant has again requested for permission to prove the original cheque, notice and complaint under section 244 Cr.P.C. It is worth mentioning here that Section 138 is the summary or summary of the Code of Criminal Procedure in cases related to the Negotiable Instruments Act, the provisions related to the trial of summon cases are effective and the provisions of Section 244 of the Code of Criminal Procedure are not effective in the present case.
It has further been recorded that the fact has not been mentioned by the complainant in her application as to why the cheque, legal notice and complaint was not proved by her while recording her statement in examination-in-chief, when she had the opportunity in that regard. No affidavit has been filed by the complainant in support of her application. Apart from that, the complainant has not shown any solid ground in her application for delay in submission of the same and for giving opportunity for re-evidence, which appears that the application has been made by the complainant only for the purpose of delaying the case which is not acceptable. On the basis of such finding the impugned order has been passed by the court below.
Learned counsel for the applicant submits that the order impugned is patently illegal, arbitrary, erroneous, not sustainable in the eyes of law and liable to be quashed by this Court. It is further submitted that as per the law laid down by this Court as well as the Apex Court in the catena of judgment to protect the interest of justice, the evidence could be lead at any stage of the proceeding, hence the order passed by the court below rejecting the application of the applicant under Section 244 Cr.P.C. cannot be legally sustained.
On the other-hand the learned A.G.A. for the State submits that the court below has recorded categorical finding of fact and examined the provisions Section 244 Cr.P.C., while passing the impugned order. There is no illegality or infirmity in the order impugned.
For examining the correctness or otherwise of the order impugned, it is necessary for this Court to refer the provisions of Section 244 Cr.P.C. which reads as follows:
"244. Evidence for prosecution.
(1) When, in any warrant- case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."
It is also relevant for this Court to refer the provisions of Sections 254 and 311 Cr.P.C. For ready reference Section 254 Cr.P.C. reads as follows:
"254. Procedure when not convicted.
(1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) The Magistrate may, before summoning any witness on such application require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.
311. Power to summon material witness, or examine person present.
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."
Perusal of the provisions i.e. Sections 244, 254 and 311 Cr.P.C. indicates that the court below has rightly opined that since the provisions of Section 138 N.I.C. are the summary trial under the Code of Criminal Procedure. In cases related to the Negotiable Instruments Act, the provisions related to the trial of summon cases are effective and the provisions of Section 244 of the Code of Criminal Procedure are not effective in the present case. Therefore, this Court is of the opinion that the proper remedy available to the applicant/complainant to make an application under Section 311 Cr.P.C. for seeking an opportunity to prove the averments of complaint relating to cheques, legal notice and complaint. After allowing the same, evidence may be adduced under Section 254 Cr.P.C.
So far as the other ground taken by the court below in passing the order impugned that the application has been filed by the applicant at a belated stage i.e. when her testimony (in examination-in-chief and cross-examination) has already been completed, is concerned, this Court has find substance in the contention of the learned counsel for the applicant that to protect the interest of justice, evidence can be lead at any stage of the proceedings. (Reference the judgment of the Hon'ble Supreme Court in the case of Manju Devi Vs. State of Rajasthan reported in (2019) 6 SCC 203.).
In the facts and circumstances of the case, this Court disposes of this application under Section 482 Cr.P.C. by providing that the applicant/complainant may make an application under Section 311 Cr.P.C. supported by such affidavit as may be advised, explaining the reasons for filing the same, before the concerned court within two weeks from today, along with a certified copy of this order. On such application being made, the court concerned shall consider and decide the same, in accordance with law, by means of a reasoned speaking order, preferably within two weeks thereafter.
However, it is made clear that this Court has not expressed any opinion on the merits of the case as set up by the applicant.
(Shiv Shanker Prasad, J.) Order Date :- 13.2.2023 Sushil/-