# Wasim & Ors v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wasim-ors-v-state-of-u-p-anr-44633
- **Pages:** 6

## Headnote

A. Criminal Law- Criminal Procedure
Code, 1973 - Summoning - Proviso to
sub-section (2) of Section 202 Cr.P.C -It
is not for the accused person to voice
any grievance that no further witnesses
named by the complainant had been
examined and, therefore, the applicants
had been prematurely summoned.

Not the case of the applicants that no prima
facie case is made out against them on the
basis of the complaint read
with the
statements already recorded.

B. Criminal Law -Criminal Procedure Code,
1973 - Section 482 - Scope - Malicious
prosecution-Cross cases- Nothing to doubt
the occurrence of the injuries claimed by
the complainant-Correctness of the two
versions cannot be determined at this stage
to reach a conclusion that the present
complaint is mala fide.

Impugned summoning order already upheld
by lower revisional court in case of co-accused
facing the same fact allegations. (Para
12,13,14,15,16 & 17)

Application u/s 482 Cr.Pc rejected (E-3)

List of cases cited: -

## Text

110 INDIAN LAW REPORTS ALLAHABAD SERIES
that Firm registered with Registrar of
Firms and Societies and is a legal
liability. Copy of partnership is on record
and it shows that there were seven
partners namely Sri Nathu Singh s/o Sri
Shiv Charan Singh, Sri Lov Kush s/o Sri
Rajbir Singh, Sri Jugberr s/o Sri yadram,
Sri Arun Kumar s/o Sri Anand Pal Singh,
Sri Arvind Kumar s/o Sri Rohtash Singh,
Sri Rajbeer Singh s/o Sri Yadram Singh
and Sri Rajbeer Singh s/o Sri Bhopal
Singh.

6. As per averments in para 5 of
complaint, the Firm was practically being
run by Nathu Singh. In February 2004 all
the
partners
decided
to
separate
whereupon accused-applicant assured that
share of partners in total profit shall be
given to them and in respect thereto
Cheque No.965804 for Rs.3,10,000/-
dated 20.02.2004 was issued.

7. On above averment, it is evident
that it is the share/profit of one of partner
in the Firm for which cheque was issued
by another partner. Section 138 of N.I.
Act will apply only when cheque is issued
for payment of any amount of money to
another person for discharging of any
debt or other liability. Profit or share in a
Partnership Firm is not a debt on any of
the partner against another partner. In
common parlance, a debt is something
owed to another and liability is an
obligation, a chosen action which is
capable of being assigned by creditor to
some other person.

8. Here two partners of a Firm qua
share of profit in the Firm business, do
not stand in the capacity of creditor and
debtor. Both are in capacity of Owners of
the Firm and being Owners of the Firm,
partners are also jointly and severally
liable. If for distribution of share, there is
some dispute, under the provisions of The
Partnership Act, 1932 (hereinafter referred to
as "Act, 1932"), remedy lies to the partner to
file suit for accounting in common law, but
to bring it within the term of any debt or
liability attracting Section 138 of N. I. Act, in
my view is clearly erroneous. Here one
partner do not owe anything to another
partner. All the partners have their specified
shares in the Firm and if there is any dispute
with regard to receipt of such share between
partners, the same can be settled by initiating
proceeding of accounting, but not by taking
recourse to Section 138 of N.I. Act.

9. Similarly, to attract the term
'liability', it is difficult to hold that one
partner owes liability to another partner in
respect to money or amount, which is
claimed to be the share in profit, since,
profit is earned by Firm and all the
partners having similar and equal status in
the Firm, it can be distributed amongst
themselves as per their consent or taking
remedy in common law, but Section 138
of N. I. Act would not be attracted, hence,
proceedings under Section 138 N. I. Act,
are wholly without jurisdiction.

10. In view thereof, application is
allowed. The proceedings of Case No.246
of 2004, under Section 138 of N.I. Act,
pending
in
the
Court
of
Judicial
Magistrate, Mawana, Meerut (Rajveer
Singh vs. Naththu Singh) is hereby
quashed.
----------
(2019)11ILR A110

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2019

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH , J.
3 All. Wasim & Ors.Vs. State of U.P. & Anr.
111
Criminal Misc. Application No.17207 of
2016u/s 482 Cr.P.C.

Wasim & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Rahul Srivastava, Sri Bhuvnesh Kumar
Singh.

Counsel for the Opposite Parties:
A.G.A., Sri Mukhtar Alam, Sri Sudhir Dixit.

A. Criminal Law- Criminal Procedure
Code, 1973 - Summoning - Proviso to
sub-section (2) of Section 202 Cr.P.C -It
is not for the accused person to voice
any grievance that no further witnesses
named by the complainant had been
examined and, therefore, the applicants
had been prematurely summoned.

Not the case of the applicants that no prima
facie case is made out against them on the
basis of the complaint read
with the
statements already recorded.

B. Criminal Law -Criminal Procedure Code,
1973 - Section 482 - Scope - Malicious
prosecution-Cross cases- Nothing to doubt
the occurrence of the injuries claimed by
the complainant-Correctness of the two
versions cannot be determined at this stage
to reach a conclusion that the present
complaint is mala fide.

Impugned summoning order already upheld
by lower revisional court in case of co-accused
facing the same fact allegations. (Para
12,13,14,15,16 & 17)

Application u/s 482 Cr.Pc rejected (E-3)

List of cases cited: -

1. Shivjee Singh Vs Nagendra Tiwary & ors.,
(2010) 7 SCC 578 (followed)

2. St. of Haryana & ors. Vs Bhajan Lal & ors.,
(1992) Supp 1 SCC 335
3. M/s. Eicher Tractor Ltd. & ors. Vs Harihar
Singh & anr., (2009) 64 ACC 296
(Delivered by Hon'ble Saumitra Dayal
Singh J. )

1. Rejoinder affidavit has been filed
today. Taken on record.

2. Heard Sri Bhuvnesh Kumar
Singh, learned counsel for the applicants;
Sri Mukhtar Alam and Sri Sudhir Dixit,
learned counsel for the opposite party
no.2 and; learned AGA for the State.

3. The present application u/s 482
Cr.P.C. has been filed to quash the
summoning order dated 15.12.2015 as
well as entire proceeding of Complaint
Case No. 2658 of 2015 (Shahnawaz Vs.
Daud & Ors.), under Sections 302, 307,
459 I.P.C., Police Station Kiratpur,
District- Bijnor.

4.

Learned
counsel
for
the
applicants submits, in the first place, there
is non-compliance of the mandatory
provision of law being the proviso to subsection (2) of Section 202 Cr.P.C.
Relying on the application filed by the
opposite party no.2/complainant dated
03.11.2015 (to examine Dr. Upendra
Singh and Dr. Prem Prakash) and another
application to examine Dr. Ram Kumar
and Sri Kuldeep Singh, it has been
submitted, in the context of a complaint
case, the offence alleged being triable
exclusively by a Court of Sessions, it was
mandatory for the learned Magistrate to
first record the statements of all the
aforesaid
four
witnesses
before
proceeding to issue process against the
applicants. Also, in response to the
decision cited by the learned counsel for
the opposite party no.2 in Shivjee Singh
Vs. Nagendra Tiwary & Ors., (2010) 7
112 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 578, it has been submitted, in that
case,
the
facts
were
entirely
and
fundamentally different, inasmuch as the
complainant in that case had given up the
remaining two witnesses. Therefore, the
ratio of that decision is distinguishable.

5. Second, it has been submitted, the
prosecution lodged against the present
applicants is wholly mala fide. In this
regard, it has been submitted, on
18.07.2015, the incident had taken place
wherein close relatives of complainant
had assaulted the applicant no.1, his
father and others. In that incident, the
father of the applicant no.1 died of a gunshot injury while applicant no.1 also
received a gun-shot injury. Injuries to
both persons had been caused from close
range. Also, in the indiscriminate firing
by the assailants, one of them i.e.
Chhuttan also suffered a gun-shot injury.
The panchnama and site-plan were
prepared by the police authorities. The
place of incident was found to be an open
place from where blood stains and empty
cartridges were recovered by the police.
During investigation, four country-made
pistols were recovered from Faizan,
Imran, Rizwan and Azad.

6. Consequently, charge-sheet was
submitted on 27.08.2015. Cognizance
was taken and thereafter the case was
committed for trial to the Court of
Sessions on 06.11.2015 being S.T. No.
552/2015. Therein evidence was led and
arguments
heard.
However,
upon
administrative order passed by the learned
District
Judge
that
trial
case
was
transferred two days before the date fixed
for delivery of judgement. The matter is
thus
pending.
As
to
the
present
prosecution, it has been submitted, the
same had been lodged with mala fide
intention only to set up a completely false
defence to the prosecution story in S.T.
No. 552/2015. A wholly unbelievable
case has been set up by the complainant
that too 15 days after the incident, that he
and others had been assaulted by the
applicants inside their residence when
certain injuries were suffered by Chhuttan
as also the applicant and his father
suffered gun shot injuries. Thus, it has
been submitted, the complaint is nothing
but an eye-wash and a pretence set up
only to pressure the applicants to
withdraw from the criminal case lodged
by them. It is wholly mala fide. He has
also relied on a decision of the Supreme
Court in the case of M/s. Eicher Tractor
Ltd. & Ors. Vs. Harihar Singh & Anr.,
(2009) 64 ACC 296. In that context, he
has further placed reliance on para 102
(7) of the earlier decision of the Supreme
Court in the case of State of Haryana &
Ors. Vs. Bhajan Lal & Ors., (1992)
Supp 1 SCC 335.

7. Opposing the present application,
learned counsel for the opposite party
no.2 and learned AGA would submit that
in view of the decision of the Supreme
Court in the case of Shivjee Singh Vs.
Nagendra Tiwary & Ors. (supra), it is
no longer res integra whether the proviso
to the sub-section (2) of Section 202
Cr.P.C. is mandatory i.e. whether it is
necessary for the learned Magistrate to
first record statements of all witnesses
named
by
the
complainant
before
proceeding to issue process against the
accused person. The choice being of the
complainant to examine such witness as
he may choose, merely because an
application may have been filed earlier to
examine some other witness as well, it
would not bind the learned Magistrate to
first record their statements also, even
3 All. Wasim & Ors.Vs. State of U.P. & Anr.
113
though prima facie he feels satisfied that
a case was made out to take cognizance
and issue process.

8. Merely because some other
witnesses had not been examined did not
prevent the learned Magistrate from
taking cognizance and issuing process, at
an earlier point in time, upon examination
of other witnesses. In this regard, it is
submitted,
six
witnesses
had
been
examined in support of the complaint and
the impugned order itself reflects that
P.W.-1 Zaheer Ahmad; P.W.-2 Chhuttan;
P.W.-3 Gulbahar Alam; P.W.-4 Rizwan
and; P.W.-5 Ram Kumar had been
examined under Section 202 Cr.P.C.
while the complainant had also been
examined under Section 200 Cr.P.C. It is
after considering those statements and the
complaint allegations that, at present, the
learned Magistrate felt prima facie
satisfied to proceed further. Therefore,
relying on the decision of the Supreme
Court in Shivjee Singh Vs. Nagendra
Tiwary & Ors. (supra), it has been
submitted, there is no illegality committed
by the learned Magistrate.

9. As to the allegations of mala fide
prosecution, it has been submitted, the
present is a case where there are two
narrations of one incident, one being
made by the mother of the applicant no.1
and the other made by opposite party no.2
Shahnawaz. Inasmuch there is death
caused on one side and grievous hurt
injury caused on the other, it cannot be
disputed that there is prima facie basis for
the accusations made by both sides. The
cause of the injury or death or the manner
in which they were caused is what
requires a trial to be held. According to
the applicants, all injuries had been
caused by the close relatives and
associates of opposite party no. 2 and that
fact allegation may be tried in S.T. No.
552/2015.
However,
the
facts
are
otherwise. That fact allegation may be
examined only in the trial that may arise
on the complaint lodged by the opposite
party no. 2. Both sides having led
evidence to establish existence of prima
facie case, it would be premature to reach
a conclusion that the allegations made by
opposite party no.2 are mala fide. It
would remain a matter to be examined
upon detailed evidence to be led by both
sides. Only then the truth may be
established.

10. In any case, it has been
submitted that the present summoning
order was challenged by one of the coaccused Shadab in Criminal Revision No.
6 of 2016 filed before the learned
Additional Sessions Judge, Court No.2,
Bijnor. It was dismissed by order dated
04.03.2017, a copy of which has been
annexed along with the counter affidavit.
Therefore, it has been submitted that, in
any case, the ground of mala fide
allegations may not be entertained in the
present proceedings in view of the fact
that the summoning order has already
been affirmed by the revisional court
(though at the behest of a co-accused) and
which order has attained finality.

11. Having heard learned counsel
for the parties and having perused the
record, it is true that in Shivjee Singh Vs.
Nagendra Tiwary & Ors. (supra), as a
fact, the complainant had, after recording
evidence of two out of four witnesses,
given up the remaining two witnesses for
reason of his apprehension that they had
been won over by the accused. However,
that distinction of the fact apart, the
Supreme Court has, after making detailed
114 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration of the various provisions falling
under Chapters XV and XVI of the Cr.P.C.
and existing precedent, culled out the legal
situation emanating therefrom. In paragraph
no. 22 of that decision, the Supreme Court
considered the usage of the word "all"
appearing in the proviso to Section 202 (2)
Cr.P.C. and found it to be qualified by the
word "his", i.e. the complainant. It was then
reasoned that such qualification implied that
the complainant was not bound to examine all
the witnesses named in the complaint or
whose names may have been disclosed in
response to the order passed by the learned
Magistrate.

12. It was further clarified only those
witnesses were required to be examined
whom the complainant may consider
material to make out a prima facie case for
issue of process. It is then left to the choice
of the complainant to examine or to not
examine other witnesses once prima facie
case had been made out according to him,
i.e. the complainant. As to the consequence
of non-examination of other witnesses, it
was further held, the same is to be
considered at the stage of trial and not
earlier. The Magistrate has also not been
required to make any detailed discussion on
the merits or demerits of the case, at this
stage. In view of that reasoning contained in
the decision of the Supreme Court, it is not
possible to draw a distinction being claimed
by the learned counsel for the applicants.
The distinction of fact, pointed out by
learned counsel for the applicant, is, on the
reasoning of the Supreme Court found to be
inconsequential for the purposes of issuance
of process.

13. It may have been a different case
if, in the absence of any specific
expression or application made by the
complainant not to examine any further
witness, the learned Magistrate has
chosen to dismiss the complaint. In that
case, the complainant may have felt
aggrieved and sought remedies against
such action. However, that reasoning is
not available to the accused persons, since
they have been summoned upon prima
facie satisfaction having been recorded as
to their complicity in the offence alleged
being reached on the basis of statements
already recorded. It is not the case of the
applicants that on the basis of the
statements recorded by the learned
Magistrate, no offence was made out.

14. Thus, in view of the ratio of law
laid down by the Supreme Court, it is not for
the accused person to voice any grievance
that no further witnesses named by the
complainant had been examined and,
therefore,
the
applicants
had
been
prematurely summoned. Since it is not the
case of the applicants that no prima facie
case is made out against them on the basis of
the complaint read with the statements
already recorded, the argument advanced by
learned counsel for the applicants, does not
call for any further discussion. It is rejected.

15. As to the second objection
raised that the complaint is mala fide,
suffice it to observe, at present, there is
nothing to doubt the occurrence of the
injuries claimed by the complainant,
inasmuch as even, according to the case
of the present applicants, Chhuttan had
received a gun shot injury in the incident
that had taken place. As to which of the
two versions of the incident is correct, it
is not for this Court to hazard a guess at
this stage to reach a conclusion that the
present complaint is mala fide.

16. Though, there can be no doubt
that the mala fide complaint or prosecution
3 All. Surendra Kumar Singh & Ors.Vs. State of U.P. & Anr.
115
can never be allowed to proceed in the view
of the decision of the Supreme Court in the
case of State of Haryana & Ors. Vs.
Bhajan Lal & Ors. (supra) as followed in
M/s. Eicher Tractor Ltd. & Ors. Vs.
Harihar Singh & Anr. (supra), however, to
reach that conclusion, the facts must be
unequivocally clear to the court. At present,
there is sufficient doubt as to which version of
the same event is correct. Therefore, the plea
of mala fide prosecution is also rejected, at
this stage.

17. Further, in this regard, it also
cannot be lost sight that in case of the coaccused Shadab, the summoning order
that is under challenge in the present
proceedings, has been upheld by the
lower revisional court and that order has
not been assailed by that co-accused
Shadab. Though the applicants may not
be bound by that order, however, in
exercise of inherent jurisdiction under
Section 482 Cr.P.C., the court cannot be
unmindful of that order having been
attained
finality.
In
such
fact
circumstances and background of legal
remedy availed by the said Shadab, he is
likely to stand trial on the same fact
allegations. For that reason also, I am
disinclined to exercise the inherent
jurisdiction of this Court, on behalf of
other co-accused persons, facing the same
fact allegations. The interest of justice
and concern to prevent abuse of process
of court appears to lie not in quashing the
complaint at this stage but rather in
allowing the complaint to proceed further.

18.

Accordingly,
the
present
application lacks merit. The prayer made
to quash the complaint is declined.

19. However, in case the applicants
appear before the learned court below
within a period of 45 days and apply for bail,
the learned court below shall deal with their
bail application as expeditiously as possible,
strictly in accordance with law, without
being influenced by any observations made
in this order.

20. With the aforesaid observations,
the present application is disposed of.
----------
(2019)11ILR A115

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.05.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Application No.17753 of 2005
u/s 482 Cr.P.C.

Surendra Kumar Singh & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ranjeet Singh

Counsel for the Opposite Parties:
A.G.A., Sri M.K. Tiwari.

A. Criminal Law -Criminal Procedure Code,
1973 - Section 482 of the Cr.P.C. - Gound -
Malicious
Prosecution-Applicants
summoned to face trial u/s 435 IPC by the
Magistrate treating Protest petition as
Complaint-
Strong
circumstances
to
indicate
that
the
incident
remained
unwitnessed by anybody and implication of
the accused is just a result of prior enmity-
Delay in lodging F.I.R. wholly unexplained
phenomenon which shall go to the root of
the matter- Matter falls in category no.(7)
mentioned in case of State of Haryana Vs.
Bhajan Lal 1992 SCC(Cr.) 42.

Proceedings are inspired by malice on the part
of complainant and the version contained