HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.R. No.: 22 of 2005 Reserved on: 3.11.2008 Decided on: 4.11.2008 Kamal Krishan ………petitioner. Versus Budh Ram and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.S.S. Mittal, Senior Advocate, with Mr.B.S. Attri, Advocate. For respondent No.1: Mr.K.D. Sood, Advocate. V.K. Ahuja, J: This is a petition filed by the petitioner under Section 397 read with Section 482 of the Cr.P.C. for quashing of the order passed by the learned Sub Divisional Judicial Magistrate, Manali, dated 5.10.2004, vide which the petitioner alongwith proforma respondents No.2 to 6 were summoned by the Court under Section 193, 380, 468, 420 read with Section 120-B of the IPC. Briefly stated the facts of the case are that respondent No.1 as complainant (hereinafter also referred to as the complainant) filed a complaint as against the petitioner and respondents No.2 to 6 in which the present petitioner was impleaded as accused No.6. The complaint was filed by the complainant ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - alleging that in his absence when he had gone to perform the last rites of his father at Haridwar, accused No.1 i.e. respondent No.6 committed theft of two blank cheques lying in the Hotel and the allegations made as against the remaining respondents/accused including the petitioner were that they are known to the main accused No.1 and they had the knowledge of these cheques which were stolen but on the basis of a criminal conspiracy and with the intent to do wrongful gain to themselves and wrongful loss to the complainant, they initiated proceedings under Section 138 of the Negotiable Instruments Act as against the complainant before the SDM, Phillaur, District Ludhiana. The learned trial Court recorded the preliminary evidence of the complainant/respondent No.1 and summoned the petitioner and other proforma respondents under various Sections mentioned above but the present petitioner has only challenged the summoning order passed as against him I have heard the learned counsel for the parties and have gone through the record of the case. The main submissions made by the learned counsel for the petitioner were that the complainant had alleged that he had gone to Haridwar to perform the last rites of his father in February, 1999 and during his absence he had left two blank cheques for domestic expenses which were stolen by the main accused respondent No.6. It was submitted by the learned counsel for the petitioner that there is evidence on record to show that the father of the complainant/present respondent No.1 had died two years prior to 1999, which clearly shows that he made wrong allegations that he was not present at Manali in February 1999 and as such the impugned order is liable to be set aside. - 3 - This plea was not specifically taken in the petition filed by the petitioner and to my kind this plea is beyond the ground on which the present petition was filed by the petitioner. Moreover, this point is to be considered by the learned trial Court on the basis of the evidence whether the allegations made by the complainant Budh Ram have substance in them or are false and this point cannot be considered by this Court exercising the jurisdiction under Section 397 which is revisional jurisdiction or inherent powers of the court under Section 482 of the Cr.P.C. No specific arguments were raised that the evidence led was insufficient to summon the petitioner. I have also gone through the record of the case. The learned trial Court had recorded the statement of the complainant and other witnesses and a copy of the complaint lodged by the present petitioner as Power of Attorney as against the complainant/respondent No.1 was also tendered in evidence as Mark C. Keeping in view the fact that there was some evidence which warranted the summoning of the petitioner, the said order passed by the learned trial Court cannot be said to be suffering from any illegality. The plea raised in regard to the fact that if the father of the complainant was already dead or that these allegations were made falsely or wrongly is to be considered by the learned trial Court on the basis of the evidence. However, there is no material on record to show that the impugned order passed by the learned trial Court suffers from an illegality and is liable to be quashed. However, the petitioner is at liberty to raise this plea at the time of framing of charges/issuance of notice of accusation under Section 251 of the Cr.P.C. or at any other stage, if permitted by law. That point - 4 - is left open to be decided by the learned trial Court as and when the said plea is raised. In view of the above discussion, I accordingly hold that there is no merit in the petition filed by the petitioner, which is dismissed accordingly. The case has already taken sufficient time for disposal and the complaint is pending since long, therefore, the learned trial Court shall fix the case on day to day basis as far as possible for evidence and shall try to dispose of the case on or before 30.6.2009. Record of the learned trial Court be returned back immediately alongwith a copy of this judgment. November 4, 2008. (V.K. Ahuja), (TILAK) Judge.