CRM No. M 319 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 319 of 2011 Date of decision: 06.01.2011 M/s Team Tools Pvt. Limited and another ........ Petitioners Versus Shri Surinder Kumar Sood .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Manuj Nagrath, Advocate for the petitioners -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 Cr.P.C for quashing of complaint No. 638/2 dated 09.11.2004 titled as Surinder Kumar Sood v. Team Tools Pvt. Limited and others pending in the Court of learned JMIC, Ludhiana and order dated 04.11.2010 passed by learned Judicial Magistrate First Class, Ludhiana, allowing the application of the respondent. While challenging the said complaint under section 138 of the Negotiable Instrument Act, learned counsel for the petitioners submitted that the complainant filed the complaint by taking two different stands i.e. the cheque was firstly presented by respondent complainant on 21.05.2004 and the same was returned vide memo dated Nil with remark that “payment stopped by drawer and insufficient funds.” Thereafter, the cheque was again CRM No. M 319 of 2011 2 presented on 09.09.2004 but the same was returned as unpaid vide memo dated nil with remarks that 'payment stopped by drawer.' As such, the same is malicious. The said argument is a defence and does not make out a case for quashing of the complaint. A legitimate litigation cannot be quashed by exercising the power under Section 482 Cr.P.C. There are three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice. No such ground for quashing of the complaint has been raised. Learned counsel has made yet another prayer for quashing of the order dated 04.11.2010 passed by the Judicial Magistrate Ist Class, Ludhiana, whereby application filed by the respondent/complainant under Section 311 Cr.P.C was allowed and the witness from the office of Registrar of Companies was allowed to be examined. While challenging the said order, learned counsel for the petitioner contended that the name of the witness allowed to be examined was not furnished in the list of witnesses submitted by the complainant, himself and section 204(2) Cr.P.C mandates the complainant to file such a list of witnesses and non-mentioning of the witness PW6 Surinder Kumar Gulati is curable only by virtue of provision of Section 465 Cr.P.C. Heard. Learned counsel for the petitioners has himself relied on the judgments rendered by this Court in the case of Manmohan Singh v. M/s Amritsar Overseas reported as 2001(2) RCR (Criminal) 810 as well as CRM No. M 319 of 2011 3 State of Haryana v Cheeka Coop. Credit Service Society reported as 1992 (1) CRC (Criminal) 294, wherein, it is held that no revision is maintainable against the interlocutory order. While relying on the judgments of Apex Court rendered in Amar Nath v. State of Haryana (AIR 1977 SC 2185) and Central Bank of India v. Gokal Chand (AIR 1967 SC 799) in Manmohan Singh's case(supra), this Court held that the order passed by the Illaqa Magistrate regarding the admissibility of certain documents is only an interlocutory order against which no revision is maintainable. Paras 8 and 12 of the said judgment read as under:- “8. As against this, the learned counsel for the respondent relies upon the decision of the Hon'ble Supreme Court in Amar Nath v. State of Haryana (AIR 1977 SC 2185). That was a case where the police had submitted a final report in respect of the appellants) before the Hon'ble Supreme Court) on the basis of which the appellants were released by the Judicial Magistrate. This was affirmed by the learned Additional Sessions Judge, on a Revision filed against that order. A complaint was filed against the appellants and others, but the Judicial Magistrate dismissed the same. But the learned Sessions Judge, on Revision by the complainant, accepted the Revision, remanded the matter and ordered further enquiry. On receipt of this order of the learned Sessions Judge, the learned Magistrate summoned the appellants straightway. The appellants (before the Hon'ble Supreme Court) then filed a petition under Sections 482 and 397 Cr.P.C to quash this order of the learned Magistrate on the ground that the Magistrate had issued the summoning order without application of mind. The High Court refused to interfere on the ground that summoning order was an interlocutory order CRM No. M 319 of 2011 4 and therefore, a Revision was barred unde Section 397 (2) Cr.P.C. 12. I agree with the learned counsel for the petitioner in this respect. The order passed by the learned Magistrate does not adjudicate on the rights of the parties. It has only given its decision as to whether the documents sought to be introduced into evidence by the complainant are admissible or not. This order is only an interlocutory order against which no Revision could be filed in view of the specific bar contained in Section 397 (2) Cr.P.C. Therefore, the impugned order of the learned Additional Sessions Judge has to be and is accordingly set aside.” Thus, since the petitioner could not file revision, the present petition has been filed unde Section 482 Cr.P.C and the same is nothing but a revision petition under the garb of Section 482 Cr. P.C which is held to be not maintainable as per the aforesaid judgments rendered by the Apex Court in Amar Nath and Central Bank of India's case (Supra) and also by this Court in Manmohan Singh's case (supra) . In fact, the petitioner has himself relied on the judgment rendered in Manmohan Singh's case (supra). In the said case, reliance has also been placed on the decision rendered in the case of State of Haryana v Cheeka Coop Credit Service Society and others reported as 1992 (1) RCR (Criminal) 294. Para 6 of the said judgment reads as under:- “6. The learned counsel for the petitioner also relies upon another decision of this Court in State of Haryana v. Cheeka Coop Service Society and others 1992 (1) RCR 294. That was a case where after recording of part of the evidence, the prosecution moved an application CRM No. M 319 of 2011 5 under Section 311 Cr.P.C for summoning certain additional witnesses, whose names were not mentioned in the list of witnesses attached to the complaint. This application was rejected by the Special Court, against which the State had filed the Criminal Miscellaneous Petition under Section 482 Cr.P.C for setting aside the order. The contention of the respondent before the High Court was that the impugned order was an interlocutory order and no petition under Section 482 Cr.P.C was competent in view of the provisions of Section 397 Cr.P.C. This contention of the respondent was upheld by holding that the impugned order of the Special Court being interlocutory in nature, could not be interfered with by the High Court. Thus, the order allowing the respondent to lead additional evidence is an interlocutory order. As such, no petition under Section 482 Cr.P.C is competent in view of the provisions of Section 397(2) Cr.P.C being revision which is not maintainable as held by this Court in the judgment of the State of Haryana v Cheeka Coop Credit Service Society and others (supra) and relied upon by the learned counsel for the petitioner himself. Moreover, the decision rendered in the case of State of Haryana v Cheeka Coop Credit Service Society and others (supra) is based on the observation made by the Apex Court in Amar Nath's case (supra) which read thus:- “A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court then to such a case the provisions of Section 482 would CRM No. M 319 of 2011 6 not apply. It was well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.” Thus, there being a specific provision barring a revision petition against an interlocutory order, this Court cannot resort to the exercise of power under Section 482 Cr.P.C for quashing of the said order. Prayer for quashing of complaint has been made only to bring the present case in the ambit of 482 Cr.P.C. However, it is already held above that no ground for quashing of the complaint is made out. No doubt, petition under Section 482 Cr.P.C can always be entertained, in case, there is miscarriage of justice or misuse of process of law. However, no such miscarriage of justice is pointed out. Moreover, a perusal of section 311 Cr.P.C. makes it amply clear that the Court has power to summon, examine, recall and re-examine any of person if his evidence appears to it to be essential to the just decision of the case. The said permission has been duly granted keeping in view the provisions of Section 311 Cr.P.C. and therefore, no fault can be found with the said order. Section 311 Cr.P.C reads as under:- 311. Power to summon material witness, or examine person present. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person its a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the court shall summon and examine or recall and re-examine CRM No. M 319 of 2011 7 any such person if his evidence appears to it to be essential to the just decision of the case. While accepting the application under Section 311 Cr.P.C vide order dated 04.11.2010, the Judicial Magistrate Ist Class, Ludhiana noticed that the said witness is an important and material witness which goes to the root of the case to pin point the responsibility of the Directors and that it was out of inadvertence, the name of the said witness could not be mentioned in the list of witnesses. Once, the witness is necessary, it is the duty of the Court to summon such a person for proper and just decision and to arrive at the truth. In view of the foregoing discussion, the present petition is dismissed being devoid of merit. (Nirmaljit Kaur) Judge 06.01.2011 mohan