VINOD PRASAD J. - (1.) A quadruple applicants Prabhat Dhandhania, Pawan Kumar Dhandhania, Surendra Pratap Singh, and K.N. Misra have knocked the door of this court invoking it's inherent jurisdiction under section 482 Cr.P.C through the above Criminal Misc. Application hankered with the prayer to get their prosecution of Criminal Case No. 1795 of 2008, Girja Shankar Jaiswal versus Prabhat Dhandhania and others, under sections 504,506,341, I.P.C. relating to police Station Sigra District Varanasi pending in the court of VIII Judicial Magistrate, Varanasi quashed with interim prayer for stay of the trial court's proceeding pendent lite.
(2.) BRIEFLY stated, backgrounds facts generating this Criminal Misc. Application are that complainant Girja Shankar Jaiswal, respondent no. 2,is a dealer in cement and other building materials and during course of his business he had developed friendly intimacy with Prabhat Dhandhania applicant, who is the owner of Annapurna Distributors situated at Kashi Vidya Peeth Road district Varanasi. For business deal talks complainant went to the Firm of the applicant Prabhat Dhandhania on 25.4.2005 at 2 p.m., where rest of the applicants also reached. Conversation between them centered around for payment of residue of money on which complainant informed the applicant that no credit amount is due to him of previous business transactions. On this all the applicants started vituperising complainant and intimidated him criminally with his life and snatched his scooter DYE -7510 it's papers and rupees 2100. Further, complainant was detained for three hours and was made to sign on some blank and stamp papers. Endeavour of complainant to get his FIR of the said incident registered went in vain and therefore, on 6.5.2005, he wielded the power of Chief Judicial Magistrate, Varanasi under section 156(3) Cr.P.C. Vide annexure no. 3 to this Application but his said application was rejected by the court on 15.5.2005.After a gap of more that six months respondent no.2 complainant filed another application under section 156(3) Cr.P.C. on 9.12.2005 on the same allegations vide annexure no. 4. In this second attempt the application of respondent no. 2 was treated to be a complaint by the Magistrate vide his order dated 18.12.2006, who registered complaint case no. 3538 of 2006, on the said basis and thereafter rejected the said complaint under section 203 Cr.P.C. on 24.10.2007, after recording statements under section 200 and 202 Cr.P.C. Respondent no.2 successfully challenged the rejection of his complaint order in Criminal Revision No. 510 of 2007, which was allowed on 6.5.2008 by Additional Session's Judge FTC 2, Varanasi and the case was remanded back to the Magistrate vide CA 2 to the counter affidavit filed in this Application. It seems that respondent no. 2 moved another application under section 156(3) Cr.P.C. against the applicants but the said application was rejected by a detailed order on 1.8.2007 by CJM Varanasi ( Annexure no. 7).Thereafter vide order dated 17.11.2008, VIII th Judicial Magistrate Varanasi summoned the applicants in the complaint case for offense under sections 504.506,341 I.P.C. Hence this application by the applicants to get their prosecution of the complaint case quashed. At the time of admission itself complainant appeared in this Criminal Misc. Application and filed a counter affidavit to which a rejoinder affidavit has also been filed. This Criminal Misc. Application was heard finally in agreement with both the sides since the pleadings in this case were complete.
(3.) SRI Sanjiv Kumar Asthana and Sri Shiv Ram Singh learned counsels for the applicants vehementally attacked the complaint case and submitted that the same has been instituted vexatiously and maliciously only as a harassing device to take vengeance from the applicants as they had instituted an earlier complaint against respondent no. 2 under section 138 of the N.I.Act. Relying upon annexures No.1 and 2 appended along with this Criminal Misc. Application, which is the copy of the complaint and summoning order under 138 NI Act proceedings, it was submitted that finding himself in deep trouble in the said proceeding, that a false case has been cooked up by respondent no. 2 to implicated respectable persons who had no criminal background at all. It was submitted that snatching of a scooter and it's papers by the applicants who are whole sellers of JP Cement and run their own Firm in the name and style M/S Annapurna Distributors is nothing but malafide. It was submitted that in the year 2003 respondent no. 2 had issued cheques to applicant no.1 which were dishonoured because of in sufficiency of funds in the account of the complaint respondent no. 2 and hence complaint case 1654 of 2003, JP Cement through Proprietor Sri Annapurna Distributors, Prabhat Kumar Dhandhania versus Girja Shankar Jaiswal, under section n138 N.I.Act was instituted in the court on 15.10.2003 and respondent no. 2 complainant herein was summoned on 4.12.2003 that is why he has falsely implicated the applicants. It was submitted that other applicants are witnesses in that 138 NI Act case. It was submitted that the allegations in the impugned complaint are patently absurd and hence the prosecution of the applicants deserves to be quashed. It was further contended that first application under section 156(3) Cr.P.C. was dismissed on 16.6.2005 and after a gap of six months that another application was filed which indicates malicious intent of the complainant. Dismissal order of his first application dated 16.6.2005 came to the knowledge of respondent no,2 on the same day yet he preferred to remain silent for six months and it was only after that he moved another application which projects his ulterior motives of harassing the applicants in this false case which is totally absurd. Concludingly it was submitted that the harassment of the applicants be curbed and their prosecution in the above complaint case be quashed.;