Udai Shankar Awasthi vs State Of U.P.& Anr

In view of the fact that K.L. Singh, appellant in the connected appeal, could not be served properly as the correct address was not given, on being requested, the Addl. CJM withdrew the non-bailable warrants on 17.12.2011.

3. Shri Mukul Rohtagi and Shri Nagendra Rai, learned senior counsel appearing for the appellants, have submitted that as the complaint cases filed by the brother of the respondent no.2 in regard to the same subject matter were dismissed by the magistrate concerned, the question of entertaining a fresh complaint could not arise. A fresh complaint cannot be entertained during the pendency of the complaint case filed by respondent No. 2, with respect to which, the police filed a final report, stating the same to be a false complaint. It was further submitted, that there was suppression of material facts, as in Complaint Case No. 628 of 2011, dismissal of the earlier complaint was not disclosed. Furthermore, as the matter is purely civil in nature, and in view of the fact that arbitration proceedings with respect to the very same subject matter are presently sub-judice, and the claim of respondent no.2 on this count has already been rejected by the arbitrator, entertaining/continuing criminal proceedings in the said matter is clearly an abuse of the process of the court. Moreover, the alleged claim is related to the period of 1996. A complaint made after a lapse of 15 years is barred by the provisions of Section 468 Cr.P.C., and the High Court has erred in holding the same to be a continuing offence. As, in pursuance of the High Court’s order dated 25.5.2001, the representation of respondent no.2 dated 21.3.2001 was decided by the Managing Director, IFFCO vide order dated 15.10.2001, the limitation period began from the date of the said order, or at the most from 29.10.2001, that is, the date on which, the order of rejection was communicated.

Complaint Case No.4948 of 2009 was filed by Sabha Kant Pandey, brother of respondent no.2, wherein, he claimed to be a partner in the firm M/s Manish Engineering Enterprises, against one of the appellants and other officers of IFFCO, under Sections 323, 504, 506, 406 and 120B IPC at Police Statition Phulpur, District Allahabad, alleging that the said Firm had been given a separate godown/office within the IFFCO compound, wherein their articles worth Rs.30-40 lacs, as well as their documents were kept. The complainant was not permitted to remove them and additionally, even the payment for the work done by the firm was not made, on certain technical grounds. The officers of IFFCO, including Mr. U.S. Awasthi - the appellant, misbehaved with the complainant and kept the said articles worth Rs.30- 40 lacs, as also the important documents, in addition to the entry gate pass required to enter the plant by the complainant and his brother Sudhakant (respondent no.2 herein), therefore making it impossible for them to access their godown.

33. The instant appeals are squarely covered by the observations made in Kishan Singh (Supra) and thus, the proceedings must be labeled as nothing more than an abuse of the process of the court, particularly in view of the fact that, with respect to enact the same subject matter, various complaint cases had already been filed by respondent No.2 and his brother, which were all dismissed on merits, after the examination of witnesses. In such a fact-situation, Complaint Case No. 628 of 2011, filed on 31.5.2001 was not maintainable. Thus, the Magistrate concerned committed a grave error by entertaining the said case, and wrongly took cognizance and issued summons to the appellants.

34. In view of above, the appeals are allowed. The impugned judgment dated 13.3.2012 is set aside and the proceedings in Complaint Case No. 628 of 2011 pending before the Additional C.J.M., Allahabad, are hereby quashed.