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2002 DIGILAW 783 (MP)

HAQIKAT RAI v. AHMAD ALI

2002-08-19

NARAIN SINGH

body2002
( 1 ) AFTER being unsuccessful in his Criminal Revision No. 34/2000, which stood disposed of by Second Addl. Sessions Judge, Waraseoni, on 16-5-2001, this petitioner seeks exercise of inherent powers for quashment of order dated 25-1-2000, passed by J. M. F. C. Waraseoni, wherein, he dismissed the petitioner's private complaint No. 220/96, so also the aforesaid order dated 16-5-2001, passed by Revisional Court with this prayer that the complaint may be remanded for fresh disposal, according to law. ( 2 ) AS per the certified copy of complaint of this petitioner, which he filed against the respondent for offences punishable u/s. 138 of the Negotiable Instruments Act read with Sec. 420 of the IPC, which stood registered as complaint case No. 220/96, in the Court of J. M. F. C. , the respondent gave to the petitioner/complainant cheque No. 005761, drawn on State Bank of India, Waraseoni, dated 25-6-1995, for an amount of Rs. 55,000/-, in connection with an outstanding amount against him. On 10/07/1995, the petitioner presented the cheque in Waraseoni Branch of State Bank of India for encashment, which informed the petitioner on 18-7-1995 that the sufficient amount is not available in the account of respondent and thus returned the dishonoured cheque, to the petitioner. On receipt of dishonoured cheque, the petitioner sent a registered notice dated 26-7-1995 to the respondent demanding payment of dishonoured cheque within a period of 15 days. The aforesaid registered notice of the petitioner was received by respondent on 1st Aug. 1995, yet he did not make any payment and hence the petitioner filed the complaint on 12th Sept. 1995. ( 3 ) IT is noted that Gagandas, the younger brother and attorney holder of petitioner Haqikat Rai so also Thansingh Bopche, the Accountant of State Bank of India, Branch Waraseoni, have corroborated the averments of the complaint, in their statements recorded u/s. 202 of the Cr. P. C. On the basis of aforesaid evidence, the learned J. M. F. C. took cognizance of offence punishable u/s. 138 of the Negotiable Instruments Act R/w. Sec. 420 of the IPC, against the respondent. Thereafter, in evidence before charge, the petitioner examined Prakash Kher, the Manager of Waraseoni Branch of State Bank of India, so also himself, who categorically stated that on cheque, marked Ex. Thereafter, in evidence before charge, the petitioner examined Prakash Kher, the Manager of Waraseoni Branch of State Bank of India, so also himself, who categorically stated that on cheque, marked Ex. P/2, been presented for encashment, the State Bank of India dishonoured the same on the ground of non-availability of sufficient amount in the account of the drawer. The dishonoured cheque is found to have been returned along with letter in this regard, which is marked as Ex. P/4. The aforesaid cheque is found to have been deposited in State Bank of India for encashment vide paying slip, marked Ex. P/1. The petitioner is found to have supported the averments of complaint, which are detailed in para 2 of this Order. ( 4 ) AT the stage of framing the charge, the learned J. M. F. C. is found to have discharged the respondent, by impugned order dated 25-1-2000, on the ground that the respondent lodged a report on 25-6-1995, about the fact of missing of disputed cheque No. 005761 and has further filed a complaint against the petitioner in the Court of J. M. F. C. Baihar, for offences punishable u/ss. 420, 467, 468 and 471 of the IPC, which is registered and is being tried therefore, there is no justification to proceed on the complaint filed on behalf of the petitioner. The certified copy of the complaint, filed on behalf of the respondent is marked as Annex. A/13. The certified copy of statement of respondent recorded u/s. 202 of the Cr. P. C. is marked as Annex. A/14 and the certified copy of statement of respondent before charge is marked as Annex. A/15. But on the ground of taking cognizance alone of offences punishable u/ss. 420, 467, 468 and 471 of the IPC, by J. M. F. C. Baihar, on the complaint filed by respondent against this petitioner in connection with disputed cheque No. 005761, the petitioner's complaint could not have been dismissed without appreciating the petitioner's evidence available on record, in the absence of existence of any legal provision, in this regard. ( 5 ) THEN it is found dictated by their Lordships of Supreme Court in Krishan v. Krishnaveni, in AIR 1997 SC 987 : (1997 Cri LJ 1519) that even in case where a second revision under sub-section (3) of S. 397 of the Cr. ( 5 ) THEN it is found dictated by their Lordships of Supreme Court in Krishan v. Krishnaveni, in AIR 1997 SC 987 : (1997 Cri LJ 1519) that even in case where a second revision under sub-section (3) of S. 397 of the Cr. P. C. is barred, the High Court can entertain the petition, in case of grave mis-carriage of justice or abuse of process of Court, by exercising its inherent powers under Ss. 482 and 483 of the Cr. P. C. ( 6 ) SINCE it is a case of grave miscarriage of justice because the learned J. M. F. C. has dismissed the petitioner's complaint on the illegal, unjust and improper ground of the fact of taking cognizance of offences punishable u/ss. 420, 467, 468 and 471 of the IPC, by another Court of J. M. F. C. , Baihar, in respect of the same disputed cheque on the basis of which the petitioner filed a complaint against the respondent for offences punishable u/s. 138 of the Negotiable Instruments Act r/w. Sec. 420 of the IPC, the orders passed by both the Courts below are liable to be set aside, in exercise of inherent powers. ( 7 ) THUS, this petition succeeds and the order dated 25-1-2000, passed by J. M. F. C. Waraseoni, in petitioner's complaint, registered as Case No. 220/96, so also the order dated 16-5-2001, passed by Second Addl. Sessions Judge, Waraseoni, in petitioner's Criminal Revision No. 34/2000, stand set aside. The J. M. F. C. Waraseoni, is directed to consider the complaint case No. 220/96, afresh, on the point of charge, after giving opportunity of arguments to both the parties. The parties are directed to appear in the Court of J. M. F. C. Waraseoni, on 12th September, 2002. A copy of this order be sent to both the Courts below forthwith. Petition allowed. .