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“NON-REPORTABLE”
IN THE SUPREME COURT OF INDIA
ORIGINAL WRIT JURISDICTION
WRIT PETITION (CRL) NO.31 OF 2012
Karuna Singh …. Petitioner
Versus
State of NCT of Delhi & Anr. …. Respondents
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. Respondent no.2 Mrs. Veena Solanki got FIR No.13 of 2004
registered at Police Station Lodhi Colony on 13.4.2004. Therein she made
allegations against the petitioner Ms.Karuna Singh and five others. On
16.4.2007, i.e., more than three years after the registration of the aforesaid
FIR, a charge-sheet was filed against the petitioner (and five others), under
Sections 420, 468 and 471 read with Section 120B of the Indian Penal
Code. Though a period of more than five years has elapsed after the filing
of the charge-sheet, we are informed, that charges are yet to be framed by
the Additional Chief Metropolitan Magistrate (South) Saket, New Delhi.
2. Soon after the registration of the FIR referred to in the foregoing
paragraph, the petitioner filed a complaint under Section 138 of the
Negotiable Instruments Act, 1881 on 24.9.2004. The aforesaid complaint
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was made against respondent no.2, Mrs.Veena Solanki. Along with her
complaint, the petitioner claims to have filed her evidence by way of a
personal affidavit. Thereafter on 25.9.2006, the Magistrate (Negotiable
Instruments Act) trying the complaint, allowed respondent no.2 to crossexamine the petitioner. Even after five years, the cross-examination which
commenced in 2006 is stated to be continuing. It is submitted, that the
cross-examination of the petitioner, at the behest of the respondent no.2, is
mainly with reference to FIR No.13 of 2004 registered on 13.4.2004. This,
according to the petitioner amounts to a gross abuse of law by respondent
no.2, and as such, violates the fundamental rights of the petitioner vested
in him under Articles 20(3) and 21 of the Constitution of India. In this
behalf, it is the contention of the learned counsel for the petitioner, that the
provisions of Negotiable Instruments Act, 1881 contemplate a speedy and
swift trail. Referring to the proceedings initiated by the petitioner under
Section 138 of the Negotiable Instruments Act it is submitted, that the
cross-examination of the petitioner at the hands of respondent no.2 has
lasted for more than five years. Denial of a speedy and expeditious trial
constitutes an act of harassment of the petitioner, and as such the violation
of the petitioner’s fundamental rights.
3. At the very inception, we expressed our views about the
maintainability of the instant writ petition under Article 32 of the
Constitution of India. We, therefore, called upon the learned counsel for
the petitioner to assist us as to whether, it is desirable to entertain a
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petition like the one in hand, directly before the highest court of the land.
In so far as the instant controversy is concerned, it would also be relevant
to notice, that in order to facilitate respondent no.2 to cross-examine the
petitioner, the Magistrate (Negotiable Instruments Act) trying the complaint
filed by the petitioner, vide an order dated 9.9.2009 summoned the chargesheet filed in Case FIR No.13 of 2004. The petitioner Ms.Karuna Singh,
assailed the aforesaid order dated 9.9.2004 in the High Court at Delhi by
filing Criminal Misc. Case No.3668 of 2009. It is the submission of the
learned counsel for the petitioner, that the trial court despite the pendency
of Criminal M.C. No.3668 of 2009, allowed respondent no.2 to crossexamine the petitioner, even with reference to the charge-sheet in case
FIR No.13 of 2004 (and other documents connected therewith). In so far
as the instant aspect of the matter is concerned, it was the case of the
petitioner, that the High Court had failed to take any final decision in the
matter. It was also submitted at the behest of the petitioner that the
Magistrate (Negotiable Instruments Act) trying the complaint of the
petitioner, had unfairly allowed the petitioner to be cross-examined with
reference to the said charge-sheet in Case FIR No.13 of 2004. A
submission was also advanced at the behest of the petitioner, that the
Magistrate (Negotiable Instruments Act) had failed to control the crossexamination of the petitioner (at the hands of the respondent no.2). In this
behalf, it was pointed out that during the process of cross-examination of
the petitioner, the petitioner had invited the attention of the Magistrate
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(Negotiable Instruments Act) to a decision rendered by the Delhi High
Court in Rajesh Aggarwal vs. State and another etc., 2010 VII AD (Delhi)
576. Despite the aforesaid, the Magistrate (Negotiable Instruments Act),
while permitting respondent no.2 to cross-examine the petitioner on
2.5.2011, had imposed costs of Rs.20,000/- for wasting court time by
making such an intervention. It was also pointed out, that the order dated
2.5.2011 was assailed by the petitioner by filing a writ petition in the High
Court at Delhi. It was submitted, that the aforesaid writ petition is pending,
wherein the High Court has stayed the operation of the order dated
2.5.2011 in respect of payment of costs imposed on the petitioner. It was
submitted, that the High Court has however failed to grant any injunction,
staying further cross-examination of the petitioner before the Magistrate
(Negotiable Instruments Act).
4. In the facts and circumstances narrated hereinabove, in order to
respond to the query made by this Court on the issue of maintainability (of
the instant writ petition under Article 32 of the Constitution of India),
learned counsel for the petitioner placed reliance on Baburam Prakash
Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad,
Muzaffarnagar AIR 1969 SC 556, Dr.Smt.Kuntesh Gupta v. Management
of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & Ors. AIR 1987 SC 2186
and Ram and Shyam Company vs. State of Haryana & Ors. (1985) 3 SCC
267, and on the basis thereof contended, that the rule which required the
exhaustion of alternative remedies, before the concerned High Court or the
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Supreme Court of India could be approached under their inherent writ
jurisdiction, was a rule of convenience and discretion. It was in the nature
of a self-imposed restraint of the court, rather than a binding rule of law. It
was submitted, that the availability of an alternative remedy could not oust
the jurisdiction of a High Court under Article 226 of the Constitution of
India, and of this Court under Article 32 of the Constitution of India. It was
also submitted, that in cases where the order complained of was illegal or
invalid and contrary to law, a petition at the instance of an affected party
could be entertained by the jurisdictional High Court or by this Court, and
the availability of an alternative remedy would not prevent a High Court or
this Court from entertaining a petition, specially in cases where
extraordinary relief was prayed for. It was also the case of the petitioner,
that in situations where the alternative remedy would not provide an
effective relief, the High Court and this Court, as a rule, ought to provide
relief to the concerned party. In the facts and circumstances of this case,
it is submitted, that this Court should issue appropriate directions to the
Magistrate (Negotiable Instruments Act) so as to require him to effectively
control the petitioner’s cross-examination (at the hands of the respondent
no.2), as the petitioner’s fundamental rights are being violated.
5. We have given our thoughtful consideration to the submissions
advanced at the hands of the learned counsel for the petitioner, as also,
the judgments relied upon by him. We are astonished at the submissions
advanced at the hands of the learned counsel for the petitioner. The
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petitioner herein is seeking directions to the concerned Magistrate, as a
matter of first instance at the hands of this Court. The submissions
advanced at the hands of the learned counsel for the petitioner by
themselves concede, that there is an alternative remedy available to the
petitioner, yet he has chosen to come to the highest court of the land,
under Article 32 of the Constitution of India. Even though the order passed
by the Magistrate (Negotiable Instruments Act) dated 9.9.2009 has been
assailed by the petitioner before the High Court at Delhi under Sections
482 and 483 of the Code of Criminal Procedure by filing Criminal M.C.
No.3668 of 2009, and the said proceedings are still pending, the petitioner
has chosen to approach this Court. While doing so, the petitioner has
even cast aspersions on the High Court, by pleading and contending that
the High Court had, till date, not taken a final decision in the matter. It
would also be relevant to mention, that besides filing Criminal M.C.
No.3668 of 2009, the petitioner has also filed a writ petition under Article
226 of the Constitution of India in the High Court at Delhi, wherein she had
assailed the order passed by the Magistrate (Negotiable Instruments Act)
dated 2.5.2011. In the aforesaid writ petition, the petitioner has admittedly
sought directions to the Magistrate (Negotiable Instruments Act) to control
the petitioner’s cross-examination (at the hands of the respondent no.2).
The aforesaid writ petition is still pending consideration before the High
Court. The High Court has stayed the payment of costs imposed on the
petitioner. The grievance of the petitioner is, that the High Court had failed
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to stay the further cross-examination of the petitioner, with reference to the
charge-sheet filed in Case FIR No.13 of 2004. Surprisingly, when the
prayers made by the petitioner before this Court, are pending adjudication
before the High Court at Delhi, the petitioner has approached this Court
under Article 32 of the Constitution of India, without assailing any order
passed by the High Court. This, in our considered view, amounts to gross
misuse of the jurisdiction of this Court. Such a behaviour at the hands of
the petitioner cannot be countenanced. The effort of the petitioner seems
to be, to browbeat either respondent no.2, or the Magistrate (Negotiable
Instruments Act), so that the proceedings progress as per the desire of the
petitioner. In her aforesaid effort, the petitioner has also cast aspersions
against the High Court.
6. This is not a case where despite availability of an alternative
remedy, the petitioner has approached this Court under its writ jurisdiction.
This is a case where the petitioner has availed of her alternative remedies,
and simultaneously on the same cause of action, she has approached the
highest court of the land under Article 32 of the Constitution of India. This
constitutes a gross abuse of the process of law. We are satisfied that an
efficacious alternative remedy is available to a party which has initiated
proceedings under Section 138 of the Negotiable Instruments Act, 1881.
In the present case the petitioner has approached the High Court at Delhi
under Sections 482 and 483 of the Code of Criminal Procedure, and
through a separate petition under Articles 226/227 of the Constitution of
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India. Both petitions are still pending before the High Court. It is not
possible for us to accept that the fundamental rights of the petitioner under
Articles 20(3) and 21 of the Constitution of India have been violated in any
manner whatsoever, so as to enable him to approach this court, in the
manner suggested. If the instant plea of the petitioner is accepted, the
jurisdiction of this Court under Article 32 of the Constitution of India will
become available against every action of a Magistrate, not only under the
Negotiable Instruments Act, but also, in respect of criminal proceedings
conducted under other statutory provisions.
7. To the benefit of the petitioner, it also needs to be noticed, that
reliance was placed on behalf of the petitioner on M/s.Mandvi Co-op. Bank
Ltd. vs. Nimesh B. Thakore AIR 2010 SC 1402. The instant reliance was
placed on the basis of the merits of the controversy i.e., in support of the
merits of the petitioner’s cause. Having gone through the judgment relied
upon by the learned counsel for the petitioner, we find that the same is
wholly inapplicable to this case. In Mandvi Coop. Bank’s case (supra) the
accused on being summoned under Section 145(2) of the Negotiable
Instruments Act, raised the plea, that inspite of the complainant having
filed his evidence by way of an affidavit under Section 145(1), the
complainant must be orally examined in chief all over again, before the
accused is summoned or called upon to cross-examine the complainant.
This Court while disposing of the aforesaid controversy interpreted Section
145(2) of the Negotiable Instruments Act to conclude, that a person who
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had preferred his evidence on affidavit, need not make an oral deposition
in court, before the accused is summoned or is required to cross-examine
him. This is not the issue in the present controversy. We are therefore
satisfied, that the reliance placed by the learned counsel for the petitioner
on Mandvi Coop. Bank’s case (supra) is wholly misconceived.
8. In view of the above, we are of the view, that the petitioner has
grossly abused the jurisdiction of this Court by approaching this Court
under Article 32 of the Constitution of India. The instant writ petition being
devoid of any merit is hereby dismissed. For the abuse of the process of
this Court, the petitioner is directed to deposit costs quantified at
Rs.20,000/- with the Supreme Court Legal Services Authority, within four
weeks from the date of pronouncement of the instant order, failing which
the matter be placed before the Court for appropriate direction for recovery
of the costs.
…………………………….J.
(Dr. B.S. Chauhan)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
April 10, 2012.
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Digital Performa
Case No. : Writ Petition (Crl.) No. 31 of 2012
Date of Decision : 10.04.2012
C.A.V. on : 19.03.2012
Cause Title : Karuna Singh
Versus
State of NCT of Delhi & Anr.
Coram : Hon’ble Dr. Justice B.S. Chauhan
Hon’ble Mr. Justice Jagdish Singh Khehar
Judgment delivered by : Hon’ble Mr. Justice Jagdish Singh Khehar
(Read by Hon’ble Dr. Justice B.S.
Chauhan)
Nature of Judgment : Reportable
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