Supreme Court - Daily Orders
Unnat Marwah vs Harminder Singh on 29 October, 2014
Bench: Sudhansu Jyoti Mukhopadhaya, S.A. Bobde
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2329 OF 2014
(Arising out of SLP (Crl.) No. 9151 of 2013)
UNNAT MARWAH .....APPELLANT
VERSUS
HARMINDER SINGH & ANR. ......RESPONDENTS
O R D E R
Leave granted.
This appeal has been preferred by the complainant-appellant against the Judgment and Order dated 26th June, 2013 passed by the High Court of Uttarakhand at Nainital in Criminal Misc. Application No.1175 of 2012. By the impugned judgment and order, the High Court allowed the application filed by the accused Harminder Singh under Section 482 Cr. P.C. and quashed the order dated 16th June, 2012 passed by the Special Judicial Magistrate, Dehradun, whereby exercising power under Section 319 Cr.P.C. the accused Harminder Singh was summoned as an additional accused.
It is not in dispute that the accused Harminder Singh was named in the complaint filed by the appellant for the offence under Sections 138 and 141 of the Negotiable Instrument Act (hereinafter referred to as `Act'). However, he was not summoned. After statement of some of the witnesses, the appellant filed an application under Section 319 Cr.P.C. to summon Harminder Singh. The Special Judicial Magistrate, Dehradun on hearing the parties and taking into consideration the primary evidence on record, by order dated 16th June, 2012 summoned the accused with following observations:
Signature Not Verified Digitally signed by“Now, the Court has to consider this fact that Rajni Mukhi Date: 2014.11.05 17:55:43 IST whether sufficient evidence for summoning Harvinder Reason: Singh being an accused are available or not?1
Whatever documents have been filed by Complainant through list 49 Ka, out of them, document Nos. 50 Ka and 51 Ka are the Minutes of Meerings. There are signatures of presence of Harvinder Singh and Amit Pal Singh on behalf of M/s. Seven Communications on both the papers above. There is writing on the stamp paper for value of Rs.100/- being paper No.27 Ka/2. This fact is mentioned in this writing that the above said cheque No.758750 for amount of Rs.65,00,000/- is being issued in favour of Unnat Marwah regarding overall full and final settlement of all liabilities in between M/s. Seven Communications and M/s. Ate Call Such assurance was given that on depositing the above said cheque in the bank, its payment will be received. There are signatures of Amit Pal Singh and Harvinder Singh on the above said documents on behalf of M/s. Seven Communication and there are signatures of Unnat Marwah on behalf of M/s. Ate Call.
P.W.-1 Unnat Marwah has made assertion at Para No.2 during the course of his examination-in-chief that Amit Pal and Harminder Singh are partners of their Firm and are responsible jointly for overall acts of the Firm.
P.W.-1 Unnat Marwah has made assertion at Para No.5 during the course of his examination-in-chief that liability of Amit Pal and Harminder Singh and their firm M/s. Seven Communication has appeared due to business for other parties, for assurance of payment of which, the accused persons have executed some Agreements from him and other peoples and there are signature of accused Amit Pal and Harminder Singh and his over them. Accused Amit Pal and Harminder Singh have made signature over it in presence of others and he identifies them and he confirms regarding its accuracy and correctness on oath.
P.W.-1 Unnat Marwah has made assertion at para No.6 during the course of his examination-in-chief that Amitpal, Harminder Singh and M/s. Seven Communications and he and his firm have done business, wherein, whatever written arguments have been executed in accordance with it in between the accused persons on behalf of them and their form from him and other people and have given personal guarantee, due to it, the joint liability for amount of Rs.65,00,000/- appeared against him and his firm on Amit Pal, Harminder Singh and M/s. Seven Communication, for confirmation of this liability, the true attested copy of his bank account is filed.2
P.W.-1 Unnat Marwah has made assertion at para No.7 during the course of his examination-in-chief that Amit Pal, Harminder Singh and M/s. Seven Communications, while accepting this liability, gave a cheque no. 758750 for amount of Rs.65,00,000/- dated 7.3.2008 drawn on Punjab National Bank for payment of the above amount, while making signature over it by accused Amit Pal on behalf of his firm and partner Shri Harvinder Singh while making sure and giving this assurance that sufficient funds of Amit Pal Harminder Singh and M/s. Seven Communications firm is deposited in the bank and whenever within a period of 6 months on any date the said cheque will be submitted in the Bank, the amount will be paid and same would be received in Hyderabad by him while making him believe on the facts of Amitpal, Harminder Singh which was signed by accused Amitpal. At the time of giving the above said described cheque to the Complainant, Amit Pal and Harminder Singh were personally present and Harminder Singh has authorized to Amit Pal to execute signature on the cheque in presence of Complainant and had given his consent and thereafter, Amit Pal and Harminder Singh gave him such assurance that the payment of cheque will be received.
This fact is absolutely apparent on the basis of evidence produced on behalf of Complainant that Amit Pal Singh and Harvinder Singh both are partners of accused M/s. Seven Communication Company and the alleged cheque was issued by them on behalf of the above said firm in favour of Complainant Company and in connection with it, even one document is written. Even in this document, being partners of the firm, Harminder Pal and Amitpal Singh both people have executed their signatures. Any rebuttal of this fact is not raised during the course of arguments that Amit Pal Singh and Harvinder Singh, both were not partners of M/s. Seven Communication and against the acts done on behalf of the Firm, there was no any type of equal responsibility of Amit Pal Singh and Harvinder Singh in this regard. Even rebuttal of this fact is not raised during the course of arguments that in act of issuance of cheque, Harvinder Singh was not involved in any manner, however, sufficient evidence is produced on behalf of Complainant regarding this fact. So, in opinion of this Court, there is sufficient evidence of this fact that Shri Amitpal Singh and Harvinder Singh, both are partners of M/s. Seven Communications and the alleged cheque was issued by them on behalf of firm in subsistence of their 3 responsibilities in favour of the Complainant Company.
Thus, Shri Harvinder Singh is also completely involved in act of issuance of cheque.” Having heard the learned counsel for the parties and taking into consideration the facts and circumstances of the case and evidence, as noticed by the Special Judicial Magistrate, we are of the view that the Special Judicial Magistrate, Dehradun rightly summoned the accused Harminder Singh, on the basis of the primary evidence brought on record by the complainant. In such circumstances it was not open for the High Court to quash the order issuing summon only on the ground that earlier no summon was issued against the accused.
For the reason aforesaid, we set aside the impugned judgment and order dated 26th June,2013 passed by the High Court of Uttarakhand at Nainital in Criminal Misc. Application No.1175 of 2012 and affirmed the order dated 16th June, 2012 passed by the Special Judicial Magistrate, Dehradun by which accused Harminder Singh was summoned. The trial court will proceed in accordance with law and will try to dispose of the matter expeditiously uninfluenced by the order passed by the High Court or this Court.
The appeal stands disposed of.
...............................J. [SUDHANSU JYOTI MUKHOPADHAYA] ..............................J. [S.A.BOBDE] NEW DELHI;
OCTOBER 29, 2014
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ITEM NO.2 COURT NO.4 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 9151/2013
(Arising out of impugned final judgment and order dated 26/06/2013 in CRLMA No. 1175/2012 passed by the High Court Of Uttarakhand At Nainital) UNNAT MARWAH Petitioner(s) VERSUS HARMINDER SINGH AND ANR Respondent(s) (with office report) Date : 29/10/2014 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA HON'BLE MR. JUSTICE S.A. BOBDE For Petitioner(s) Ms. Madhavi Diwan, Adv.
Mr. Manan Verma, Adv.
Ms. Ranjeeta Rohtagi,Adv.
For Respondent(s) Mr. Sudhir Mendiratta,Adv.
Mr. Rahul Verma, Adv.
Mr. Rajiv Nanda,Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal stands disposed of in terms of the Signed Order.
(Rajni Mukhi) (Suman Jain)
Sr. P.A. Court Master
(Signed Order is placed on the file)
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