HIGH COURT OF CHHATHSGARH AT BILASPUR Gr.M.P. WO. 8/2011 APPUCANT MOn-APPLICANTIS "^A. VER8U8 1. 2. 3. 4. Gajanaad Burange, S/o Shri Krishna Buxange, aged 48 years, resident of Shivncri Hotel, Opp. C.M.D. College Chowk's lane, Liak poad, P.S. Tarbahar, Dist. Bilaspur (C.G.). Lakshau Chaad Goyal, S/o late Harchaud Goyal, Indrawati Goyal, W/o Lakslunl Chaad Goyal, Maaoj Goyal, S/o Lakshini Chand Goyal. Kamlesb goyal, S/o Lakshxni Chaad Goyal, AU the non-applicants are resideats of R-2, Vinoba N^ar, P.S. Tarbahar, BUaspur, TahsU aud Dist Bilaspur (C.G.), APPLICATION UFNDBR SBCTION 482 OF THB CaunUNAL PROCEDURE CODE. 1973. (SB :Hon'ble Mr. T.P.Sharma, J.) Present;- SIui SuuU. Otwaiu, Advocate for the applicant. Non-appUcaats not noticed. ORAL-ORDBaR (Passed on 17/01/2011) 1. By this pctition under Section 482 of the Code of Crmunal Procediire, 1973 (in short 'the Code') applicaat has challenged fhe legality and propriely of fhe order dated 28/10/2010 passed by Tbird Additional Sessioas Judge, Bilaspur (C.G.) ia criminal revision No. 109/2010 affirmiug fhe order dated 18/6/2010 passed by Judicial Magistrate Pirst Class, Bilaspur ia crlauual coiaplaint case No. 185/2010 whereby trial Court while fianaiag thc chai^e ^aiast noa-appUcaut No. 1 namely Lakshnii Chand Goyal under Sections 418 & 467 of fhe Indiaa Peual Code bas dischai^ed the non- applicants No, 2 to 4 in terms ofSection 245 (1) offhc Code. '2^ 4. 5. As per casc of tfae appUcant/complamant, non-appMcant No. 1 Lakshini Cliaad Goyal has fifcd the complaint case imdcr Section 138 of the Negotiabfc Instnuuents Act, 1881 agaiast the appUcaat in wliich he was rcleased on bail, when he iaspected the fite fheu he found fhat cheque presented for encasluncnt was not for paymcat of debts or discharge of liabilily and has also beea foi^cd and foigcd docuiaent has been uscd ia thc coniplaint case, fhereaftcr he has filed coiaplaiut relating to such chcque against the non-applicants. After exainiaation of complauiant and its witoesses trial Court proceeded against the non-applicants under Sections 41& & 467 of fhe Indiaa Penal Code. In terms of Scction 244 of ffae Code. Complaiaant has examined hiiuself i.e. Gajanaad Burange ia support of his complaint, copy of which the appUcaat has filed during course of argames.t, After considering the evidencc bcfote charge adduced on bchatf ofthe complainant tnal Court has fi-ained the chaiges for the offence punishablc under Sections 418 & 467 of the Indian Penal Code against onty non-appHcant No. 1 aud discliai^ed fhe aoa-applicants No. 2 to 4, same was challexiged before tfae revisional Coiut, By oidcr impugued revisional Coiurt has also dismissed fhc petition. Shri Suufl Otwaiii, Icamed coiinsel for fhe applfcant is heard. Learaed counsel for the appUcant vehemently aigued that at fhe tirae of fi-aming chargc, if the charge is fi'amed Magistrate is not required to assign Tcasons but if Magistrate dischaa^c thc accused then Magistrate is required to ass^n the reasons for such dischaige. '"&•. 8. 9. Learacd counsel for fhc applicaat furfher ai^ued fhat oid.er ps^sed by trial Court is iu ciyptic aud causal mauaer aad has not assagned reasons for discharge the same was afBrmcd by the revisioual Court therefore, iaterveution uader Section 482 ofthe Code is rcquired. Leamed counsel for the applicant pjaced relianGc in the matter of Lala Prasad AMas Laln Prasad Yadav v. State of BUiar Thfoa^h CBI (AHD) Pataa1 ia which Supreme Court has held tfaat in case of fi-aining chai^e any opinion may TaQsety to prejudicc the case of fhe accused put on trial fherefore, no regk>n ^ required for fi-asung charge but in case of discharging fhc accused, Coiirt is reqxure to pass reasoned order. Reasoned ordcr is imperative but ia fhc present case, no reasoned order has beea passcd relatmg to dischaqie ofnon-applicaats No. 2 to 4. Copy of complaint, order of both the Courts below, statemcnt of complaint recorded under Section 244 offhe Codc perused. In the present case, as per complaiat, non-appUcaat No. 1 Lakshiai Chand Goyal has used the cheque for payment of debts and dischai^e of liability although as per case of the applicant, it was not for payment of debts or discharge of Uabilily. Non-applicant No, 1 has filed coinplaint zmder Section 138 of the Ncgotiabte Instruments Act, 1881. On exammation said cheque.same was fouad foiyeA which non-applicant No. 1 has used. As per allegation inade iu coiaplaint, 4 cheques lias been giycn by the applicaat to non-appBcants relating to some civfl transaction but out of 4 chequcs non-appUcaat No. 1 has uscd onc chcquc and tfaat too he has foi^ed fhe clieque. AppHcaat has exainiaed tuiaself uader ' (2007) 1 SCC 49 ni ^ § ? 1 §• 3 ,<^ S- a. w §• ? t**» (0 i—WR w 3' Qs. g ^ ni g ps.s 60 e; 3 3- ^ &. S B. § 5- | S ? ff " 1 < ? 1 I- 1 1't & 1 1 1 c» & °B *t -ra 1 s n. s o 1 I 1 I i- i III 9 ° §• "|i s-:. 5-' & i I- m g s.? §' p's. ^ e 1o. ^l S' 3 s" 'v e & o. '-'- n s.IIli 8 | (t g' 6 u rt-?i S •V II. S' s s- & 1 1 1 5- g 1 1 1 ti; ? a» 1 o 11 rf-zo e. 1 f .^ .;s8!18».>lt- ^^^' ^f \ ^ IT a. ji s' •f. t a *. the first sub section of Section 245, if a Magistrate, after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused. As per sub-secUon (2) the Magistrate is empowered to discharge the aocused at any previous stage of the case if he considers the charge to be groundless. Under both sub sections he is obliged to record his reasons for doing so. IN this context it is pertinent to point out that even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge." . 11. In accordance witli Sectioa 245 (1) of the <3ode at the tlme of fraaala^ of charge instituted oa a complaint case Ma^strate Is reqnired to record reasons aad if Mq^strate fluds that no case agalnst the accnsed has been made oat whicti if uarebutted would wawant his conviction thea Magjtetrate shall dfa(cha»ge the accused. At fhe time of fi-amiag of char^e iinder Section 245 of the Code Magistrate is not reqiure to see only pruna facie case but require to consider ttie evidence ia its evidenciaiy valuc and required to examine ia the lightofaforesaid provisioas thatwhether the evidence adduced is of such nature which if not rebutted wouJd warrant the conviction ofthe accused. 12. Evidence of appUcaat reveals tiiat cheque has becn used by non- applicant No. 1, cheque has been tempered or foi^ed by non- appUcaut No. 1, and applfcant has not deposed anything rclating to non-applicaats No. 2 to 4 relatmg to such use or forgeiy. In abscnce of such evidence, Magistrate was not uader obl^gatioa to fiaaie fhc 1 ~ V :,'iit-,«-i., v '^.. charge ia tenns ofSection 245 ofthc Code therefore; Magistrate has righfty dischai^ed fhe non-appUcants No. 2 to 4. 13. As regard passiag of reasoned order TS conceraed, definitely Magistrate is required to pass reasoned order ia terms of Section 245 offhe Code but he has not passed reasoned oider in detail. 14. Scope of Section 482 of the Code te veiy liinited. In aU Gases of flUegatity or irregularily High Coiirt is not required to excroise its inherent jurisdiction. It should be used sparfngty in aa exccptional circumstaaces, while deaUng with exercise of power under Section 482 of fhe Code ia fhe matter of M/s. Zaudu PIiarmaceatical Worhs Ltd. aad others v. Md. Sharaftil Haqne and other^ the Suprcmc Court has he]d thus:- 8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not eonfer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumsteinces under which the inherent jurisdiction may be exercised, namely, (i) to give effecf to an order under tbe Code, (ii) to prevent abuae of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govem the exercise of inherent jurisdiction. No legisiative enactment dealing with procedure can provide for all cases that may possibly arise, Courts, therefore, have inherent powers apart from express provisions of law which are necessaiy for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powera of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, AIR 2005 SC 9 ':"tes, \^>- •^- as inherent in their constitution, all such pcwers as are necessaiy to do the right and to undo a wrong in course of administration of justice on the principle "quamSo lex aSquid aiicui concedit, concedere videtur et id sine quo res yisae esse rwn potesf (when the law gives a person aaything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though -wide has to be exercised sparingly, carefully and with caution and only when such exerc-ise is justified by the tests specificaUy laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone c»urts exist. Authority of the court adsts for advancement of justice and if any attempt is made to abuse tbat authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of procesa of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it ainounts to abuse of the process of court or quashing of these pnsceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the oomplainant has alleged and whether any ofience is made out even if the allegations are accepted in toto." 15. As held in case of M/s Zandu Pliarmaceutlcal Wwhs litd. aad otliers (Supra) iu all cases of illegality or irregularity High Court is, not required to excrcise its inherent jiu-isdiction. It should be used spariagly ia an exceptional circumstaaces. Judicial Magistrate First Class, Bilaspur has not passed reasoned orier for discharge of the non-appMcaats No. 2 to 4 but it is obvious fium the stateinent ofthe .V appUcant recorded under Section 244 offhe Code tbat applicaat has utterly faUed to inake auy allegatton or statenient agalnst the non- applicaat Nos. 2 to 4. In absence of such evidcnce Jzulicial Magistrate First Class, Bilaspur has not coininitted aay substantial iUegality in. discharging fhe non-applicaats No. 2 to 4. Prcsent applicaat has fited petition without aay just and proper cause imder Section 482 of fhe Code for exercisiug inherent jurisdlction. Consequently, petition is dismfesed in Umiue subject to payinent of costofRs. 3000/- to non-appUcaut No. 1 wifhin 15 days fix>in today before fhe trial Court. 16. Other iaterim application are also dfamissed. Sd/-,.-' T.RShanha Judge