@JUDGMENTTAG-ORDER
Mihir Kr. Jha, J.@mdashHeard learned counsel for the parties. This is an application for quashing the order dated 14.9.2006 passed in Complaint
Case No. 2131 of 2005 whereby and whereunder the learned Judicial Magistrate, 1st Class, Katihar, having taken cognizance under Sections 418
and 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act had issued summons against the petitioner for facing trial
after noticing that there were sufficient materials to indicate that the petitioner, the Managing Director of Sun Plant Agro Finance Limited had
committed cheating and the cheque issued for a sum of Rs. 55,000/- in favour of the complainant-opposite party no. 2 had bounced.
2. Reference may be made to the earlier order of this Court dated 28.9.2007 in this very proceedings. It would appear from the aforementioned
order that when opposite party no. 2 in his counter-affidavit had pointed out as with regard to institution of two parallel proceedings against the
same impugned order taking cognizance dated 14.9.2007 in complaint case no. 2131 of 2005 in the form of a Cr. Revision Application, being Cr.
Revision No. 176 of 2006 filed on 9.10.2006 in the Court of District and Sessions Judge, Katihar, and this quashing application (Cr. Misc. no.
48447 of 2006) filed on 16.11.2006, the petitioner was asked to explain as to under what circumstances he had filed the present quashing
application on 16.11.2006 when he had already filed a Cr. Revision Application against the same impugned order vide Cr. Revision No. 176 of
2006 in the Court of District and Sessions Judge, Katihar. He was further asked to explain as to why this fact was not mentioned in the quashing
application which was filed on 16.11.2006 that he had already moved the Court of District & Sessions Judge by filing a Cr. Revision Application
on 9.10.2006 against the same order.
3. The petitioner has filed a supplementary affidavit wherein filing of the Cr. Revision Application by him on 9.10.2006 against the same impugned
order, which is the subject matter of this quashing application filed on 16.11.2006 has not been controverted. It has also not been mentioned as to
why the filing of the said Cr. Revision Application was not mentioned in the present quashing application. On the other hand, all that has been
sought to be explained is that the Cr. Revision No. 176 of 2006 filed by the petitioner was withdrawn on 1.9.2007 after filing of the present
quashing application. It has also been stated that an application for withdrawing the revision application was filed on 19.7.2007 but the same could
not be pressed on account of illness of the counsel for the petitioner, namely, Sri Ranvijay Prasad Singh and therefore, the application which was
filed for withdrawal of the revision application on 19.7.2007 got disposed of on 1.9.2007.
4. From the aforementioned facts it is absolutely clear that the petitioner misled this Court on 16.11.2006 by suppressing the fact that the order
dated 14.9.2007 taking cognizance had also been made the subject matter of Cr. Revision Application filed in the Court of District & Sessions
Judge, Katihar, which was filed on 9.10.2006. It was on this misrepresentation that he also got notice issued on the opposite party no. 2 by order
dated 20.12.2006 whereby and whereunder the further proceedings of the Complaint Case No. 2131 of 2006 had also been stayed. In fact, it
now becomes clear that when a counter-affidavit dated 21.5.2007 was filed on behalf of opposite party no. 2 pointing out the said suppression of
fact annexing the order-sheet of the Cr. Revision No. 176 of 2006 vide Annexure-B to the counter-affidavit, that the petitioner took steps for filing
of an Application for withdrawal of the Cr. Revision application on 19.7.2007, which as stated above got withdrawn on 9.1.2007. It is very
significant to mention here that in between 20.12.2006 when the petitioner obtained a stay by suppressing of fact, the case was placed for
admission before this Court on two dates i.e. on 21.5.2007 and 13.8.2007 but the petitioner did not divulge this information before this Court that
he had also filed a revision application or that he had also taken steps for withdrawal of the revision application. The power under Sections 397 /
401 of the Code of Criminal Procedure vesting the revisional power in the District and Sessions Court and this Court (High Court) is concurrent
and if the bar u/s 397(3) of the Code of Criminal Procedure of not filing a revision application in this Court against the same order in which a
revision application has also been filed in the District and Sessions Court has to be strictly construed, no litigant can be allowed to cut loose and be
permitted to abuse the jurisdiction by filing one revision application against the same order in the District and Sessions Court and the other
application, before this Court u/s 482 of the Code of Criminal Procedure. Such parallel proceedings in fact is neither conceived in law nor can be
said to be a bona fide conduct of a litigant. I have therefore no hesitation in coming to a conclusion that the petitioner has misused the jurisdiction of
this Court u/s 482 of the Code of Criminal Procedure by filing this application at a point of time when his revision application against the same
impugned order was pending in the Court of District & Sessions Judge, Katihar.
5. It is thus manifest that the petitioner had deliberately made a suppression of fact and had obtained a rule from this Court by getting the notice
issued as also stay of the further proceedings of the complaint case by hoodwinking this Court. The conduct of the petitioner therefore in
approaching this Court is viewed seriously with strong sense of condemnation. The petitioner having not approached this Court with clean hand is
thus liable to be subjected to not only with dismissal of the present case but also be subjected to an exemplary cost of Rs. 25,000/- to be
deposited by the petitioner in the Patna High Court Council for Legal Aid and Advice within a period of two weeks from today.
6. In the result, this application is dismissed. Let the records of this case be placed under the heading for orders on 31.10.2007 on which day
learned counsel for the petitioner will inform this Court with regard to the depositing of the amount of Rs. 25,000/-.
