# Sunil Kumar v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 353
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-04
- **Case number:** Application u/s 482 No. 2903 of 2023
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-v-state-of-u-p-anr-opp-parties-49925
- **Pages:** 3

## Headnote

A. Criminal Law -Negotiable Instruments
Act,
1881-Section
138-maintainabilitycomplaint rejected when the complainant
did not appear before the court, and the
accused was acquitted-if an order of
acquittal has been passed under section
256 Cr.PC, the complainant has a remedy
to file an appeal against the acquittal in
High Court after grant of special leave to
appeal-where under the code an appeal
lies
and
no
appeal
is
brought,
no
proceeding by way of revision shall be
entertained at the instance of the party
who would have appealed-If a remedy of
appeal is available the petitioner cannot
354 INDIAN LAW REPORTS ALLAHABAD SERIES
be
permitted
to
invoke
inherent
jurisdiction
u/s
482
CrPC-Hence
the
petition is not maintainable.(Para 1 to 9)

The application is dismissed. (E-6)

List of Cases cited:

H.P. in HIM Advances & Savings Pvt. Ltd. Vs
Ravinder Kumar Gupta (2002) CrLJ 4741

## Text

4 All. Sunil Kumar Vs. State of U.P. & Anr.
353
thereafter he filed criminal cases after one
by one against the applicant in order to
exert pressure and to harass him.

46. This Court is of the view that the
correctness or otherwise of any deed like
will-deed, power of attorney, sale-deed etc.,
which is registered by a public/government
authority
can
be
more
appropriately
adjudicated by a Civil Judge on the basis of
oral as well as documentary evidence to be
led by the parties and unless or until the
same is not decided that the same is false
and fabricated deed, the criminality cannot
come into picture for making such deed.
Such stage in the present case has yet to
come.

47. In view of the deeper scrutiny of
laws laid by the Apex Court referred to
herein--above and its discussion and the
facts and circumstances of the case, this
Court is of the opinion that none of the
offences for which the applicant is
summoned in both the cases, is made out
from the FIR and the complaint and
material on record. This Court further finds
that it is nothing but abuse of process of
law on the part of the complainant/opposite
party no.2 to implicate the applicant in such
criminal cases. As already settled by the
Apex Court that Section 482 is designed to
achieve the purpose of ensuring that
criminal proceedings are not permitted to
generate into weapons of harassment, this
Court while exercising its inherent power
under Section 482 Cr.P.C. allows both the
applications.

48. Consequently, summoning orders
impugned in both the applications as well
as entire proceedings of the Case No. 517
of 2022 (State Vs. Nasir Khan), arising out
of Case Crime No. 130 of 2021, under
Sections 420, 467, 468, 471, 504, 506, 447
I.P.C., Police Station Kotwali, District
Rampur, pending in the court of Additional
Chief Judicial Magistrate, Court No.1,
Rampur as also entire proceedings of
Complaint Case No. 2537 of 2022
(Nihaluddin Vs. Nasir Khan & Others),
under Sections 417, 452, 323 and 504
I.P.C., Police Station- Kotwali, District
Rampur, pending in the court of Additional
Chief Judicial Magistrate, Court No.1,
Rampur are quashed.

48. There shall be no order as to costs.
----------
(2023) 4 ILRA 353
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 2903 of 2023

Sunil Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Anil Kumar Mishra

Counsel for the Opp. Parties:
G.A.

A. Criminal Law -Negotiable Instruments
Act,
1881-Section
138-maintainabilitycomplaint rejected when the complainant
did not appear before the court, and the
accused was acquitted-if an order of
acquittal has been passed under section
256 Cr.PC, the complainant has a remedy
to file an appeal against the acquittal in
High Court after grant of special leave to
appeal-where under the code an appeal
lies
and
no
appeal
is
brought,
no
proceeding by way of revision shall be
entertained at the instance of the party
who would have appealed-If a remedy of
appeal is available the petitioner cannot
354 INDIAN LAW REPORTS ALLAHABAD SERIES
be
permitted
to
invoke
inherent
jurisdiction
u/s
482
CrPC-Hence
the
petition is not maintainable.(Para 1 to 9)

The application is dismissed. (E-6)

List of Cases cited:

H.P. in HIM Advances & Savings Pvt. Ltd. Vs
Ravinder Kumar Gupta (2002) CrLJ 4741
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Anil Kumar Mishra,
learned counsel for the applicant, Sri
Pankaj Kumar Tripathi, learned AGA for
the State and perused the record.

2. This petition has been filed to
quash the order dated 10.11.2022 passed
by
the
Additional
Chief
Judicial
Magistrate,
Court
No.6,
Meerut
in
Complaint Case No.6600 of 2016 (Sunil
Kumar Vs. Amit Kumar), under Section
138 NI Act, Police Station Lalkurti,
District Meerut.

3. In the above noted criminal
complaint case under Section 138 NI Act
when applicant complainant did not
appear on 10.11.2022 the trial court
considering the fact that the complaint
was
pending
since
02.09.2016,
the
statement of the accused had been
recorded on 08.10.2021 but since then
complainant had not filed any affidavit as
evidence and was not attending the court
from the past several dates, even last
opportunity was provided to him even
then he neither appeared nor moved any
application, the trial court dismissed the
complaint under Section 256 CrPC and
acquitted the accused.

4. Being aggrieved, this application
under Section 482 CrPC has been filed.

5. Learned AGA raised objection
regarding
maintainability
of
the
application.

6. In this regard, in course of search
of relevant judicial citation this Court finds
the judgement of the High Court of
Himachal Pradesh in HIM Advances and
Savings Pvt. Ltd. Vs. Ravinder Kumar
Gupta, 2002 CrLJ 4741 in which similar
facts were involved. For ready reference
relevant portion of the aforesaid judgment
is reproduced herein below:-

"2. The undisputed facts are that the
petitioner filed a complaint against the
respondent in the Court of the learned
Additional
Chief
Judicial
Magistrate,
Shimla,
under
Section
138
of
the
Negotiable Instruments Act, 1881. The
complaint was listed for hearing on
18.6.2001 for evidence of the complainant.
The complainant, however, applied for
exemption, but after hearing the parties,
the Court declined the exemption, and
rejected the application. Thus, the Court
observed that the complainant is not
present nor he has taken steps for
summoning the witnesses, though three
opportunities had already been granted to
him, but he has failed to take steps to
summon the witnesses and acquitted the
respondent under Section 256 of the Code.

4. Section 256 of the Code clearly and
unambiguously
contemplates
that
on
failure of the complainant to appear on the
day appointed for the appearance of the
accused or any day subsequent thereto, to
which the hearing may be adjourned the
Magistrate shall, notwithstanding anything
contained in the Code, acquit the accused,
unless for some reason he thinks the
hearing of the case to some other date in
the edge in hand, the impugned order
acquitting the respondent has been passed
4 All. Rinku Singh Vs. State of U.P. & Anr.
355
by the learned trial Magistrate because of
the absence of the complainant, who was to
lead evidence on the date fixed for hearing.
Therefore, by virtue of the provisions of
Section 256 of the Code, for all intents and
purposes the impugned order is an order of
acquittal.

5. Sub-section (4) of Section 378 of the
Code provides that against an order of
acquittal passed in any case instituted upon
complaint, the complainant, after grant of
special leave to appeal from the order of
acquittal may present an appeal to the
High Court. Thus, a complainant has a
right of appeal against an order of
acquittal.

6. Sub-section (1) of Section 410 of the
Code provides that where under the Code,
an appeal lies and no appeal is brought, no
proceedings by way of revision shall be
entertained at the instance of the party who
would have appealed.

8. Since the remedy of the petitioner
was by way of appeal against the impugned
order of acquittal, therefore, there being
specific grievance, the petitioner cannot be
permitted
to
invoke
the
inherent
jurisdiction of this Court under Section 482
of the Code."

7. In the cited case the complainant
had filed a complaint under Section 138 NI
Act and when he did not appear before the
court, the accused was acquitted which was
challenged by the complainant in the High
Court by way of a criminal revision and
under Section 482 CrPC as well. The High
Court of Himachal Pradesh concluded that
if an order of acquittal has been passed
under Section 256 CrPC, the complainant
has a remedy to file an appeal against the
acquittal in High Court after grant of
special leave to appeal. The Court had also
referred Section 410(1) CrPC that where
under the Code an appeal lies and no
appeal is brought, no proceeding byway of
revision shall be entertained at the instance
of the party who would have appealed.

8. Whether a petition under Section
482 CrPC lies, has also been discussed by
the court that if a remedy of appeal is
available the petitioner cannot be permitted
to invoke inherent jurisdiction of High
Court under Section 482 CrPC.

9. In view of the above discussion, the
present petition is not maintainable and is
accordingly dismissed without prejudice to
any other legal remedy available to the
petitioner.
----------
(2023) 4 ILRA 355
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application u/s 482 No. 3473 of 2023

Rinku Singh ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Kripa Kant Pandey, Sri Rajiv Lochan Shukla

Counsel for the Opp. Parties:
G.A.

A. Criminal Law -Code of Criminal
Procedure, 1973-Section 482 & 91-
Narcotics
Drugs
and
Psychotropic
Substances Act, 1985-Sections 18/20applicant arrested and was produced
before the court allowing the remand-the
court below directed the Superintendent
of Police to conduct an inquiry regarding
the reality and correctness of the First
Information
Report-present
applicant