At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE NAHEED ARA MOONIS
For the Applicant: Bishram Tiwari, Advocate. For the Respondent: Government Advocate.
Naheed Ara Moonis, J.
1. Case called out in the revised list. No one appears on behalf of the applicant to press this application. Learned counsel for the respondent and the learned A.G.A. are present.
2. The instant petition has been filed with the prayer to quash the entire proceedings of complaint Case No. 3443 of 2009, under Section 138 Negotiable Instrument Act, police Station Modi Nagar, district Ghaziabad pending in the court of Special Judicial Magistrate (C.B.I.), Ghaziabad.
3. On 15.12.2011 at the request of the learned counsel for the applicant the matter was sent to the Mediation Canter. The order passed on 15.12.2011 is quoted below;
"Heard learned counsel for the applicant and learned A.G.A.
The applicant, through the present application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with the prayer that the proceedings of Complaint Case No. 3443 of 2009, under Section 138 of Negotiable Instruments Act, P.S. Modi Nagar, District Ghaziabad pending in the court of Special Judicial Magistrate-(CBI) District Ghaziabad, be quashed.
Learned counsel for the applicant submits that this matter can be settled through the process of Mediation/compounding in accordance with the directions issued by the Apex Court in the case of Damodar S. Prabhu v. Sayed Babulal H. (2010) 5 SCC 663.
In view of the above, it is directed that the applicant shall deposit 10% of the amount payable under the cheque by a Demand Draft drawn in favour of Mediation Centre within a period of three weeks from today 90% whereof shall be paid to the opposite party no. 2.
4. It is directed that Mediation Centre shall conclude the matter expeditiously preferably within a period of three months, after giving notices to both the parties. Thereafter, the case shall be listed before the appropriate Bench.
5. Till the next date of listing, no coercive measure shall be taken against the applicant in Complaint Case No. 3443 of 2009 under Section 138 of Negotiable Instruments Act, P.S. Modi Nagar District Ghaziabad pending in the court of Special judicial Magistrate-(CBI) Ghaziabad."
6. It is surprising to note that at the instance of the learned counsel for the applicant the matter was referred to the Mediation Canter but neither the applicant appeared before the Mediation Canter nor deposited the amount as directed by means of the aforesaid order. Today even the case is taken up in the revised list but no one has appeared on behalf of the applicant. From the perusal of the record it appears that the summoning order was passed against the applicant under Section 138 Negotiable Instrument Act by order dated 18.3.2010. The said order was passed by the Additional Chief Judicial Magistrate, Court No. 5, Ghaziabad after recording the statement of the complainant under Section 200 Cr.P.C. and after going through the material evidence filed in support of the complaint i.e. cheque memo of Bank, postal receipt and receipt of U.P.C. and the notice. The appellant approached this court and challenged the aforesaid summoning order by filing Criminal Misc. Application No. 10632 of 2011 raising objection about jurisdiction of the court of Chief Judicial Magistrate, Ghaziabad. The another Bench of this court passed the following order on 5.4.2011, which is reproduced as under;
"Heard learned counsel for the applicant and learned A.G.A. This application has been filed by the applicant with a prayer to quash the proceedings of complaint case no. 3443 of 2009, under section 138 Negotiable Instrument Act, P.S. Modi Nagar, District Ghaziabad, pending in the court of Additional Chief Judicial Magistrate-III, district Ghaziabad.
It is contended by the learned counsel for the applicant that in the present case the Additional Chief Judicial Magistrate, court no. 5 district Ghaziabad was not having territorial jurisdiction, even then the learned magistrate has taken cognizance .
In reply to the above contention it is submitted by the learned A.G.A. that in this case the Additional Chief Judicial Magistrate, court no. 5 district Ghaziabad was having jurisdiction. Considering the same, it is directed that in case the applicant moves an application with regard to the territorial jurisdiction before the court concerned through his counsel within 20 days from today, it shall be heard and disposed of expeditiously in accordance with law. Till then no coercive steps shall be taken against the applicant. With the above direction this application is finally disposed of."
7. In compliance of the order dated 5.4.2011 the applicant moved an application raising the plea of maintainability of the complaint before the Chief Judicial Magistrate-III, Ghaziabad. After considering the arguments of the learned counsel for the applicant the court below had rejected the application by a detailed and speaking order on 30.7.2011. The applicant failed to appear before the court, hence non-bailable warrant was issued against him and the proceedings under Sections 82 and 83 Cr.P.C. were also initiated against the applicant after issuance of non-bailable warrant. The applicant deliberately failed to appear before the court and filed the present petition for the same relief, which was made in the earlier petition i.e. for quashing the entire proceedings under Section 138 Negotiable Instrument Act in the aforesaid complaint case and succeeded in obtaining an ex parte order on 15.12.2011 in the garb that the matter can be settled at the Mediation Centre. The order was passed to that effect by this court in the present petition on 15.12.2011 and thereafter the applicant failed to appear before the Mediation Canter. The applicant neither appeared before the Mediation Canter nor deposited the amount as directed by this court hence he has made all efforts to elongate the matters as the trial proceeding has been stayed since 15.12.2011. The applicant has himself made a mockery of the process of law and by filing successive petitions for the same relie
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f has misled the court. 8. I do not find any illegality in the order dated 30.7.2011 passed by the learned Magistrate, which is annexed as Annexure-6 to the affidavit filed in support of the application, thus this court does not find any abuse of the process of law in initiating proceedings against the applicant under Section 138 Negotiable Instrument Act. 9. The application is devoid of any merit and is accordingly dismissed. Interim order dated 15.12.2011 is hereby vacated. 10. Office is directed to communicate this order to the court below. The court below will proceed with the case in utmost expeditious manner in accordance with law.