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2009 DIGILAW 1161 (BOM)

Ashok Uddhao Patil v. State of Maharashtra

2009-09-10

R.Y.GANOO

body2009
JUDGMENT : 1. Rule was already issued in the matter. Heard learned Advocates for the parties. 2. Non applicant no.2 filed complaint namely Criminal Case No. 33/2005 in the Court of Judicial Magistrate First Class, 9th Court, Nagpur alleging therein that applicants have committed offence punishable under Section 406, 420 r/w Section 34 of the Indian Penal Code. After recording of the verification, learned Judicial Magistrate First Class ordered investigation by Police as per Section 202 (1) of the Code of Criminal Procedure. Police report came to be filed and, thereafter, the learned Judicial Magistrate on 19.07.2005 came to the conclusion that the process should be issued under Section 406 read with Section 34 of the Indian Penal Code and order to that effect was passed. That order was challenged by filing Criminal Revision No. 357/2005. The learned 12th Ad hoc Additional Sessions Judge, Nagpur by judgment and order dated 05.02.2007 dismissed the said Criminal Revision No. 357/2006 against which this application has been filed. 3. Few facts, necessary for disposal of this application are as under:- Non applicant no.2 had entrusted two cheques bearing Nos. 323011 and 323012 duly signed but blank to applicant no.1-Dr. Patil with an understanding, which came to be arrived at between non applicant no.2, applicant no.1 and applicant no.2 that after the bills, which are submitted by applicant no.2, are scrutinized by the Architect by name Gotmare, applicant no.2 would be able to get the said cheques from applicant no.1 and being the beneficiary of the said amount, which is finalised by the Architect. According to the complainant, applicant no.1 without instructions from non applicant no.2 and in breach of agreement, delivered the cheques to applicant no.2 and applicant no.2 filled in one cheque for a sum of Rs. 9,92,000/-and as the said cheque got dishonoured, applicant no.2 filed complaint against non applicant no.2 under Section 138 of the Negotiable Instruments Act and non applicant no.2 had to face trial. It is on this development, non applicant no.2 filed a complaint as mentioned aforesaid. The thrust of non applicant no.2 was on the fact that applicant no.1 in violation of the trust imposed upon him delivered the cheques to applicant no.2 and as the cheque got dishonoured, non applicant no.2 had to face the trial. In the course of investigation statement of Architect Mr. The thrust of non applicant no.2 was on the fact that applicant no.1 in violation of the trust imposed upon him delivered the cheques to applicant no.2 and as the cheque got dishonoured, non applicant no.2 had to face the trial. In the course of investigation statement of Architect Mr. Gotmare was recorded and he has communicated that applicant no.2 was entitled to receive a sum of Rs. 9,63,000/-vide bill no.1 and bill no.2 respectively and, thereafter, his statement dated 08.06.2005 indicates that the abstract sheets and measurement sheets in support of the said bills were sent to applicant no.2. 4. The manner in which the transaction went ahead, it is apparent that applicant no.1, without instructions from non applicant no.2 in particular, delivered the cheques to applicant no.2 thereby violating the terms of agreement entered into between applicant no.1, applicant no. 2 and non applicant no.2. 4-(A) The things would have been different if the cheque would have been filled in for a sum of Rs. 9,63,000/- being the amount, which was recommended by Architect Mr. Gotmare instead an amount of Rs. 9,92,000/- was filled in. 5. Before this Court, the learned Advocate Mr. Dhatrak submitted that learned Judicial Magistrate First Class has not passed a speaking order so as to show that he is applied his mind before issuance of process. After having perused the impugned order passed by learned Judicial Magistrate First Class, I am inclined to observe that things were crystal clear to him that when the Architect served the bill of Rs. 9,63,000/-, a cheque for Rs. 9,92,000/- came to be filled in and this was in violation of terms with which applicant no.1 was entrusted with the said cheques. To that extent, after having perused the order passed by learned Judicial Magistrate First Class, it is apparent that he has, prima facie, come to the conclusion that process is required to be issued for charge under section 406 of the Indian Penal Code and, therefore, he passed the said order. No fault can be found in that behalf. 6. It was argued before this Court by learned Advocate Mr. No fault can be found in that behalf. 6. It was argued before this Court by learned Advocate Mr. Dhatrak that applicant no.1 had agreed to work as mediator and for that no fault on his part, he has been implicated as accused when he has not received any benefit whatsoever and that he had no mens rea as is required under Section 405 which defines the offence of criminal breach of trust. This argument of learned Advocate Mr. Dhatrak cannot be accepted upon considering the case of the complainant, namely an agreement was arrived at between three persons as mentioned aforesaid and the cheques were entrusted with applicant no1. with specific understanding and, therefore, anything done contrary to the said understanding will have to be treated as having been done with necessary mens rea, which was required for the commission of an offence under Section 406 of the Indian Penal Code. 7. It was also argued by learned Advocate Mr. Dhatrak that there was no loss or gain caused to the complainant as the cheque for Rs. 9,92,000/-came to be dishonoured and neither applicant no.1 nor applicant no.2 received a single new paisa in the entire transaction. The argument advanced by learned Advocate Mr. Dhatrak would at the first blush have become acceptable. However, after noting subsequent development in the matter, one would not be able to accept it. Things would have been alright if applicant no.2 would not have instituted a complaint against non applicant no.2 under Section 138 of the Negotiable Instruments Act but applicant no.2 did not remain calm and quiet and he instituted a criminal complaint under Section 138 of the Negotiable Instruments Act making non applicant no.2 to face the music. Facing of trial by non applicant no.2, in my view, will have to be treated as wrongful loss, which non applicant no.2 had to suffer keeping in view the definition of Section 405 of the Indian Penal Code. 8. It was argued by learned Advocate Mr. Dhatrak that transaction between the three parties, as mentioned aforesaid, was in the nature of civil transaction and it was wrong on the part of learned Judicial Magistrate First Class, to treat it as a transaction resulting into an offence and to that extent the learned Judicial Magistrate First Class erred. I am not inclined to accept that argument. Dhatrak that transaction between the three parties, as mentioned aforesaid, was in the nature of civil transaction and it was wrong on the part of learned Judicial Magistrate First Class, to treat it as a transaction resulting into an offence and to that extent the learned Judicial Magistrate First Class erred. I am not inclined to accept that argument. If two cheques were entrusted by non applicant no. 2 with applicant no.1 with a specific understanding to deal with those cheques and parting with those cheques in favour of non applicant no.2 in violation of the terms of the said understanding, would clearly fall within the meaning of term of a criminal act and in violation of understanding which was arrive at between the parties. Secondly, it would be an overt act, which comes within parameters of an act, which amounts to an offence of criminal breach of trust. Apparently, the transaction though appears to be only of civil nature, on appropriate consideration and interpretation of agreement and events which have taken place, the transaction will definitely fall within four corners of an offence under the Indian Penal Code. 9. Before this Court, certain documents were sought to be produced by learned Advocate Mr. Dhatrak in support of his contention that whatsoever was done by applicant nos. 1 and 2 was proper. These documents were in the nature of correspondence between applicant no.2 and non applicant no.2. In my view, while exercising the revisional jurisdiction of this Court, it would not be open for this Court to peruse those documents and arrive at final conclusion. At the stage of Evidence Before Charge, it may be open for the applicants to rely upon those correspondence, cross-examine the witnesses of complainant and try to bring on record that the ingredients of Section 405 are not satisfied by explaining as to why a cheque of Rs. 9,92,000/-was filled in. In my view in the peculiar facts and circumstances of the case, it will not be possible to accept stand of the applicants that order issuing process was illegal. 10. For the reasons mentioned aforesaid, the application will have to be dismissed. Hence, the order. The application is dismissed. 9,92,000/-was filled in. In my view in the peculiar facts and circumstances of the case, it will not be possible to accept stand of the applicants that order issuing process was illegal. 10. For the reasons mentioned aforesaid, the application will have to be dismissed. Hence, the order. The application is dismissed. It is clarified that whatever is expressed in this order cannot be used for the purposes of deciding the case when it would be taken up and the merits of the matter and all the contentions raised herein are kept open. The interim relief granted in favour of applicants to continue till 15.10.2009.