C482/774/2011 of INDRA SINGH BISHT AND ANR Vs SURENDRA SINGH BISHT on 21 December 2018

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 774 of 2011

Indra Singh Bisht and another

....... Petitioners

Vs.

Surender Singh Bisht

....... Respondents

Mr. Sudhir Kumar and Mr. Sarvesh Agarwal, Advocates present for the petitioners. Mr. Bhagwat Mehra, Advocate present for the respondent/recall application.

Hon’ble Ravindra Maithani, J. (Oral)

Heard on recall application (MCRC No.7 of 2018).

2. The instant petition under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) was decided on 31.05.2017 by the Court and at the last paragraph of the order, it was observed as hereunder:- “Since present application under section 482 Cr.P.C. is being decided in the absence of respondent, therefore, liberty is granted to him to move for recall of this order, if he feels aggrieved with the same.”

3. Now, respondent/applicant files recall application no.7 of 2018 for recalling the order dated 31.05.2017, so that the applicants may be afforded an opportunity of hearing.

4. The recall application (MCRC No.7 of 2018) is allowed.

5. Learned counsel for the parties are ready to argue on the main petition under section 482 of the Code.

6. The instant petition under section 482 of the Code has been filed for quashing the summoning order dated 03.06.2011 passed in criminal complaint case no.1273 of 2011 as well as the entire proceedings of criminal complaint case no.1273 of 2011, Surendra Singh Bisht Vs. Indra Singh Bisht and another, pending in the court of Judicial Magistrate, Ramnagar, District Nainital.

6. The criminal law in the instant case was set in motion by the respondent by filing an application under section 156(3) of the Code. It was averred therein that petitioners approached the respondent and on the pretext of getting a job to him took Rs.6,50,000/- from him. Out of this money, Rs.3,50,000/- was given in cash and Rs.3,20,000/- were given by way of a demand draft no.742689 of State Bank of India. The petitioners did not keep their promise. Neither the respondent was given the job, nor did the amount was returned to him. After much persuasion on 15.07.2005, petitioner gave in writing that Rs.6,50,000/-, which they have taken as a loan from the respondent, will be repaid by them within a period of one year. Application under section 156(3) of the Code was referred to Police for inquiry. Police reported that parties are in dispute regarding some transaction and it did not transpire that money was given for securing any job. It appears that the application under 156(3) of the Code was treated as a complaint. Complainant and witnesses were examined. After inquiry, the court vide impugned order summoned the petitioner for answering the accusation under section 420 I.P.C. Aggrieved, the instant petition has been filed for quashing the entire proceedings.

7. Heard Mr. Sudhir Kumar and Mr. Sarvesh Agarwal, learned counsels for the petitioners and Mr. Bhagwat Mehra, learned counsel for the respondent on the main petition under section 482 of the Code.

8. According to the respondent, the money was taken by the petitioners sometimes in the year 2003 and thereafter, neither the respondent got any job, nor did the money repaid. On 15.07.2005, the petitioners are stated to have in writing given that they would return Rs.6,50,000/- within a year.

9. In paragraph 2 of his application under section 156(3) of the Code, the respondent himself has stated that the petitioners on 15.07.2005 acknowledged having taken Rs.6,50,000/- and assured to repay it within a year since then. In this document, allegedly dated 15.07.2005, it is categorically stated that petitioner no.1 Indra Singh Bisht had taken a loan of Rs.6,50,000/- from Bhawan Singh Bisht. It is admitted by the learned counsel for the parties that Bhawan Singh Bisht is father of the respondent. This document nowhere records that the petitioners, under the pretext of securing a job to the respondent demanded and taken Rs.6,50,000/- from the respondent. Taking of loan and its non-payment may it be a civil liability, but in every case, it cannot be a basis for criminal proceedings and so is the case in the present case.

10. This Court is of the view that the nature of instant case is more of a civil nature. The ingredients, necessary for launching of criminal proceedings, are lacking, therefore, continuance of such proceedings would definitely be abuse of the process of law.

11. Accordingly, this Court is of the view that the proceedings under challenge deserves to be quashed and the petition be allowed. The proceedings of criminal complaint case no.1273 of 2011 pending in the court of Judicial Magistrate, Ramnagar, District Nainital are hereby quashed. The present petition is allowed.

12. However, if the respondent has any remedy permissible under law, he is always free to avail it.

Ujjwal

(Ravindra Maithani, J.)

21.12.2018