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Madhya Pradesh High Court · body

2008 DIGILAW 898 (MP)

PRAKASH KANTHED v. MAHESHWARI PROTEINS LTD

2008-07-22

N.K.MODY

body2008
Judgment ( 1. ) BEING aggrieved by the order dated 31-1-2006 passed by ACJM, khachhrod in Cr. C. No. 1813/05, whereby the application filed by the petitioner under Section 216 of Cr. PC, for framing of additional charge under Section 138 of Negotiable Instruments Act (hereinafter referred to as the Act) was dismissed, present revision petition has been filed. ( 2. ) SHORT facts of the case that the petitioner filed complaint with police Station, Nagda to the effect that petitioner is engaged in the business of cereals, oil seeds etc. and carrying on the business in the name and style of M/s devendra Traders at Nagda. It was alleged that respondent No. 1 M/s maheshwari Proteins Ltd. , Ratlam and its sister concern M/s Marble Agrex limited were doing business at the relevant time in the year 1996-97 at Ratlam and Mahidpur respectively and respondent Nos. 3 and 4 are the authorized signatories of the respondent Nos. 1 and 2. It was alleged that respondent Nos. 1 and 2 purchased Soyabean from the petitioner from time to time and against the price of the Soyabean five post dated cheques duly signed by respondent Nos. 3 and 4 were given to the petitioner by respondent Nos. 1 and 2 of which details are as under:- ( 3. ) IN the complaint, it was alleged that the total value of the cheques were Rs. 14,51,000/- and it was further alleged that the cheques were submitted by the petitioner for collection, but the cheque amount could not be credited to the account of the petitioner, because of insufficient funds and dishonest intention on the part of respondent Nos. 1 to 4, hence it was prayed that the respondents be prosecuted for the offence punishable under Section 420 of IPC and also under Section 138/140 of the Act. Upon the complaint lodged by the petitioner on 3-4-97, Police Station, Nagda registered a case against respondents at Crime No. 119/97. However, the petitioner also filed a private complaint on 5-5-97 under Section 138 of the Act before the learned JMFC, khachhrod, Ujjain which was registered as Criminal Complaint No. 1026/97. Further case of the petitioner was that the criminal case which was registered at crime No. 119/97 at Police Station, Nagda, charge-sheet was filed by the respondent No. 5 before JMFC on 16-1-1998 and the case was registered against the respondent Nos. Further case of the petitioner was that the criminal case which was registered at crime No. 119/97 at Police Station, Nagda, charge-sheet was filed by the respondent No. 5 before JMFC on 16-1-1998 and the case was registered against the respondent Nos. 1 to 4 as Cr. Case No. 1813/2005, it was alleged that since there were two cases, one registered under the Negotiable Instruments Act as criminal Case No. 1026/07 and another under Section 420 of the IPC as criminal Case No. 1813/05, therefore, vide order dated 27-4-1998 learned judicial Magistrate, First Class directed that both the cases be merged on the ground that in both the cases the facts which are constituting and the parties are one and the same. ( 4. ) ON 16-4-99 the charges were framed by the learned JMFC against respondent Nos. 3 and 4 under Section 420 of IPC and no charge was framed under Section 138/140 of the Act. On 29-1-2000 an oral prayer was made by the counsel for the petitioner to frame charge under Section 138/140 of the Act. Learned Trial Court vide its order dated 21-2-2000 held that in the facts and circumstances of the case the only offence under Section 420 of IPC is made out against the respondents and thus the prayer to frame the charge under Section 138 of the Act was rejected. Thereafter the case proceeded and the evidence was adduced by the petitioner which was recorded. After recording of evidence again an application was filed by the petitioner on 12-12-2005 under Section 216 of the Cr. PC, wherein it was prayed that the petitioner has already adduced the evidence from which it is proved that respondents have also committed the offence punishable under Section 138 of the Act. It was prayed that the charge be framed against the respondents under Section 138 of the Act as well. The prayer was opposed by the respondent Nos. 1 to 4 on various grounds, including on the ground that since earlier prayer made by the petitioner has been rejected, the petitioner cannot renew the prayer in the same litigation again. After hearing the parties learned Trial Court dismissed the application filed by the petitioner, against which present revision petition has been filed. ( 5. 1 to 4 on various grounds, including on the ground that since earlier prayer made by the petitioner has been rejected, the petitioner cannot renew the prayer in the same litigation again. After hearing the parties learned Trial Court dismissed the application filed by the petitioner, against which present revision petition has been filed. ( 5. ) LEARNED Counsel for the petitioner argued at length and submits that the learned Trial Court committed error in not considering the fact that the charges under the provision of IPC as well as the Negotiable Instruments Act are distinct in nature and it cannot be presumed that the charge under Section 420 of IPC would also cover the ingredients of the offence punishable under Section 138 of the Act. Learned Counsel further submits that under Section 216 of the cr. PC, petitioner can request the Court to frame/alter the charge at any point of time before pronouncement of the judgment. For this contention reliance was placed by the Counsel for the petitioner on a decision in the matter of Kantila chandulal Mehta Vs. State of Maharashtra, 1970cri. LJ510, wherein the honble Apex Court has held that "the Code gives ample power to the Courts to alter or amend a charge whether by the Trial Court or by the Appellate Court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving him a full opportunity of meeting it and putting forward any defense open to him on the charge finally preferred against him. Section 217 deals with recall, if necessary of witnesses when the charge is altered". Further reliance is placed in the matter of Hasanbhai Alibhai Qureshi Vs. State of Gujarat and others, 2004 air SCW2063, wherein the Honble Apex Court has held that "therefore, if during trial the Trial Court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate". ( 6. ( 6. ) LEARNED Counsel for the petitioner further submits that by not framing the charge under Section 138 of the Act, impliedly learned Court below has rejected the complaint filed by the petitioner under Section 138 of the Act it is submitted that the prosecution under Section 138 of the Act is a summons case and once the complaint is registered and after recording the statements under Sections 202 and 203 of the Cr. PC, learned JMFC is bound to go further and cannot review its order. Learned Counsel submits that by not framing the charge under Section 138 of the Act, learned Court below has made the complaint of the petitioner, filed under Section 138 of the Act, infructuous. For this contention reliance is placed on a decision of the Honble Apex Court in the matter of Adalat Prasad Vs. Rooplal Jindal and others, 2004 AIR SCW5174, wherein the Honble Apex Court has observed as under:- "after taking cognizance of the complaint and examining the complainant and the witnesses if Magistrate is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint to issue process under section 204 of Code. In none of these stages the Code has provides! for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 20% the order of the Magistrate may be vitiated, but then the relief and aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the Subordinate Criminal courts, the remedy lies in invoking Section 482 of Code. " ( 7. ) LEARNED Counsel for the petitioner submits that in the facts and circumstances of the case, the impugned order passed by learned Court below be set aside with a direction to frame the charge under Section 138 of the Act. ( 8. ) LEARNED Counsel for respondent Nos. 2 to 4 submits that the oral prayer was made by the petitioner on 29-1-2000 for framing of charge under section 138 of the Act. Vide order dated 21-2-2000 the same was rejected and order dated 21-2-2000 attained finality. It is submitted that since the order dated 21-2-2000 holds the field, therefore, the petitioner cannot be permitted to raise the same issue under the garb of the application filed under Section 216 of cr. PC, which has already been decided by the learned Court below. For this contention reliance is placed on a decision in the matter of Arun Kumar Bodhilal kashyap and others Vs. State of M. P. , 2000 (2) MPLJ184, wherein this Court has held that "the order of Trial Court framing charge not challenged by filing revision under Section 397 of Cr. PC, prayer for quashing charges in exercise of powers under Section 482 cannot be entertained. ( 9. ) LEARNED Counsel for respondent Nos. 1 to 4 further submits that the private complaint filed under Section 138 of the Act was filed on 5-5-97 while the Challan under Section 420 of IPC was filed by respondent No. 5 on 16-1-98, which was based on the complaint filed by the petitioner on 3-4-97. Learned counsel submits that vide order dated 24-7-98 learned Court below merged both the cases. It is submitted that since no charge was framed under Section 138 of the Act and no action was taken by the petitioner immediately. thereafter, therefore, at this juncture learned Court below committed no error in rejecting the application. ( 10. ) FROM perusal of the record, it appears that the private complaint was filed under Section 138 of the Act in which after proving certain facts the burden to prove that in what circumstances the cheque was dishonoured shifts on the person who issued the cheque. ( 10. ) FROM perusal of the record, it appears that the private complaint was filed under Section 138 of the Act in which after proving certain facts the burden to prove that in what circumstances the cheque was dishonoured shifts on the person who issued the cheque. While for making out an offence under section 420 of IPC, the prosecution has to prove that the accused dishonestly induced the complainant to deliver any property or valuable security. In the present case, no doubt the facts in both the cases are one and the same, therefore, learned Court below rightly merged both the cases vide order dated 24-7-98. It is also true that the oral prayer to frame the charge under Section 138 of the Act was rejected on 29-1-2000, but only because the prayer was rejected once, the right of the petitioner to approach the Court again, after recording of the evidence of the complainant under Section 216 of the Cr. PC is not curtained as the Section 216 of the Cr. PC lays down that the Court can alter or add any charge at any time before judgment is pronounced. Since the petitioner is also prosecuting the respondents under Section 138 of the Act and no charge has been framed by the learned Court below under that Section, therefore, even this court can direct to frame the charge while exercising the jurisdiction under section 397 of the Cr. PC. ( 11. ) IN the facts and circumstances of the case and keeping in view the law laid down by the Honble Apex Court, this Court is of the opinion that learned Court below committed error in dismissing the application filed by the petitioner under Section 216 of Cr. PC. ( 12. ) IN view of this, the revision petition filed by the petitioner stands allowed and the impugned order dated 31-1-2006 passed by JMFC, Khachhrod is set aside, with a further direction to the learned Court below to frame charge under Section 138 of the Act also against the respondent Nos. 1 to 4. However, it is made clear that respondents shall be at liberty to demonstrate that no offence has been committed by them under Section 138 of the Act for which the respondents can also avail the remedy available under Section 217 of Cr. PC for recalling of the witnesses. 1 to 4. However, it is made clear that respondents shall be at liberty to demonstrate that no offence has been committed by them under Section 138 of the Act for which the respondents can also avail the remedy available under Section 217 of Cr. PC for recalling of the witnesses. It is also made clear that any observation made by this court will not affect the case of either of the parties. Since the case is of the year 19%, therefore, learned Court below is directed to conclude the trial within a period of six months from the date of receipt of this order. Office is directed to send a copy of this order to the concerning Trial Court for compliance. With the aforesaid modification, the revision petition stands disposed of.