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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 cross-

examine 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 charge-

sheet 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 cross-

examine 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 cross-

examination 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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