MADAN, J. - (1.) THIS order will dispose of both the misc. petitions No. 702/97 filed by complainant, Mahesh Arora and No. 614/96 filed by Nidhipati Singhania (accused ).
(2.) MISC. Petition No. 614/1996 was firstly filed by Nidhipati Singhania (accused) u/s. 482 Cr. P. C. seeking relief for quashing the order dated 8. 5. 1996 passed by the Additional Civil Judge (JD) & Judicial Magistrate No. 5, Kota (North) in criminal complaint No. 163/96, whereby the learned trial Magistrate took cognizance against him (accused) of a criminal case launched by complainant Mahesh Arora u/s. 138 of the Negotiable Instruments Act, 1981 on the allegations inter alia that a cheque No. 450079 dated 20. 3. 96 for a sum of Rs. 3766/- drawn on State Bank of India for the payment of supply of lunch packets by complainant Mahesh Arora to Acrylic Division of J. K. Synthetics Ltd. (ATC Group) Kota, had been returned back dishonoured. Admittedly the said cheque was issued and signed by the authorised signatories for JK Synthetics Ltd. Acrylic Division Kota whose Special Executive is Nidhipati Singhania. The cheque was presented by complainant Mahesh Arora on 25. 3. 96 for Ganesh Mishthan Bhandar for its collection and payment through Punjab National Bank Airdrome Circle, Kota but the same (Annx. 1) was returned by the State Bank of India by dishonoring it. Be that as it may, since the payment of the cheque could not have been received by complainant Mahesh Arora, hence he sent a legal notice (Ann. 4) through his advocate on 3. 4. 1996 demanding payment of cheque amount with a threat to take appropriate action u/s. 138 of the Act. Ultimately complainant filed criminal complaint against accused Nidhipati Singhania before the trial Magistrate for offences punishable u/s. 406 and 420 IPC read with Sec. 138 of the Act. On 06. 5. 1996 statement of complainant Mahesh Arora was recorded u/s. 200 Cr. P. C. and on 08. 05. 1996 cognizance was taken by the trial Magistrate against accused Nidhipati Singhania for offence punishable u/s. 138 of the Act who issued summons for his appearance. Hence criminal misc. petition No. 614/96 was filed by Nidhipati for quashing the impugned order dated 8. 5. 96 (Annn. 6) whereby cognizance was taken and summon was issued against him. According to Nidhipati Singhania, summons have not been served upon him. It was his case that within 15 days of receipt of the notice dated 3. 4. 96 (Ann. 3), reply (Ann. 7) was sent on 20. 4. 1996 but the complainant filed his complaint on 20. 4. 96 without waiting for expiry of 15 days of notice (Ann. 3 ). On 9. 8. 96 this Court issued show cause notice of petition in S. B. Cr. Misc. Petition No. 614/96 to the complainant and ad interim order staying the operation of impugned order dated 8. 5. 96 (Anne. 6) was passed. After service of the notices upon the complainant, the case came up on 23. 9. 97 when the learned counsel for both the parties stated that there was every likelihood of amicable settlement of the matter and Mr. Mahendra Singh appearing for Nidhipati Singhania Stated that amount of dishonoured cheque would be tendered to the learned counsel for the complainant on the next date 30. 9. 97, itself. On 30. 9. 97 an amount of Rs. 3767/- which was due to the complainant on account of dishonoured cheque had been tendered in court by Mr. Mahendra Singh and was accepted by Mr. Arvind Bhardwaj learned counsel for complainant Mahesh Arora, and as a result thereof, this Court ordered as under:- "as a result of this, no cause of action survives, consequently, the petition is disposed as having become infructuous. As a result of this, the criminal proceedings initiated against the accused petitioner pursuant to the impugned order of the trial court shall also stand abated. " Against the aforequoted order dated 30. 9. 97, complainant filed criminal misc. petition No. 702/1997 praying therein for recalling that order. An affidavit of complainant Mahesh Arora was also filed as Ann. 1 to his petition claiming that he had given clear instruction to his counsel not to compromise into the matter and not to accept the amount in question in his behalf. On 11. 12. 1998 Shri S. P. Tyagi alongwith his client Mr. Mahesh Arora (complainant) appeared before this Court, and since Mr. Arvind Bhardwaj learned counsel for the complainant was not present, this Court directed that Mr. Bhardwaj would remain present on the next date 18. 12. 98 and Mr. S. P. Tyagi had conveyed his assurance that he would exercise his offices in persuading Mr. Arvind Bhardwaj for arriving at amicable settlement with Mr. Mahesh Arora. Then the case came up on 18. 12. 1998 and this Court passed following order:- "18. 12. 1998 Mr. S. P. Tyagi for the applicant Mr. Arvind Bhardwaj for the complainant petitioner Mr. Arvind Bhardwaj, learned counsel for the complainant has been heard with regard to order dated 30. 9. 1997 passed by this Bench as a result of settlement arrived at between the parties with regard to a sum of Rs. 3766/- which was due to the respondent on account of dishonoured cheque which was received by Mr. Arvind Bhardwaj in Court when it was tendered by Mr. Mahendra Singh, learned counsel representing the accused. This statement of fact has been disputed by Mr. Mahesh Arora the petitioner. Hence, I deem it appropriate to direct the matter shall be heard and decided on merits. As a result, the order dated 30. 9. 1997 is recalled and the proceedings initiated earlier against the accused petitioner as a result of dishonoured cheque of the above amount pursuant to the impugned order of the trial court shall stand restored. With the above directions, the application stands allowed and disposed of. Notice be issued to the non-petitioner, returnable within six weeks". After the afore quoted order, the Registry has continued to draw proceedings in the file of petition No. 702/97 so also in earlier petition No. 614/96. In petition No. 702/97 this Court passed following order on 14. 5. 99:- "14. 5. 99 Mr. S. P. Tyagi for the petitioner The learned counsel for the petitioner states that since respondent Nidhipati Singhania is already represented by Shri Paras Kuhad. Service on respondent is deemed to be sufficient and complete. In view of the order dated 6. 4. 1996 S. B. Criminal Misc. Petition No. 614/96 which has already been restored to its original number be notified in the cause list. This matter be listed alongwith the said connected petition. "
(3.) ON 30. 5. 2000 this Court directed that in view of the order dated 14. 5. 99 the application be listed with S. B. Cr. Misc. Petition No. 614/96 showing names of Mr. Paras Kuhad and Mr. Arvind Bhardwaj in the cause list. ON 28. 7. 2000 Mr. Sunil Nath appearing for Mr. Paras Kuhad and the respondent pleaded no instructions in the matter as the file had already been handed over to his client Nidhipati Singhania. In these circumstances, court notice without process was ordered to be issued to the parties so also Shri Arvind Bhardwaj and respondent. ON 28. 7. 2000 this Court passed following order:- "28. 7. 2000 Mr. S. M. Jain for complainant applicant Mahesh Arora Mr. Sunil Nath for Mr. Paras Kuhad for respondent Mr. S. M. Jain learned counsel for the petitioner has stated that a sum of Rs. 3766/- which was due to the complainant on account of dishonoured cheque was tendered in court by Shri Mahendra Singh, learned counsel representing the accused on 30. 9. 1997 as a result of settlement arrived at between the parties. Today, I have been informed by the learned counsel for the petitioner that though the cheque was handed over to Shri Arvind Bhardwaj, Advocate but, the same has yet not been received by the complainant. Mr. Sunil Nath, learned counsel for the respondent has pleaded no instructions in the matter as the file has already been handed over to his client. Under the circumstances, let court notice without process be issued to the parties. Court notice without process be also issued to Shri Arvind Bhardwaj Advocate for his presence before this Court on the next date. Mr. Mahesh Arora complainant petitioner and Nidhipati Singhania respondent are directed to remain present in court so as to ensure as to whether the cheque which was tendered to Arvind Bhardwaj Advocate was returned back to the party or not. Put up on 18. 8. 2000. " Accordingly notice was served upon Mr. Arvind Bhardwaj Advocate but court notice for service on Nidhipati Singhania was returned by the SHO Udhyog Nagar (Kota) with his report dated 18. 8. 2000 that Prem Singh Constable No. 176 was sent on 16. 8. 2000 for service at A 15/9 Basant Vihar New Delhi where he was accompanied with Ghasiram Head Constable No. 470 and both of them reached Nidhipati's house where security guard and one Mithilesh Kumar were found who informed about Nidhipati having gone out and when notice was given to them then they refused to receive the same so, the court notice was affixed at his house in the presence of witnesses who refused to put their signatures. In the aforesaid circumstances the matter has come up for orders and admission before this court today. ;