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Madhya Pradesh High Court · body

2009 DIGILAW 391 (MP)

Shailendra Agrawal v. State of M. P.

2009-03-25

N.K.MODY

body2009
ORDER 1. Being aggrieved by the order dated 4.3.2009 passed by IX ASJ, Indore in criminal revision No. 21/2009 whereby the order dated 29.12.2008 passed by JMFC, Indore in criminal case No. 323/2004 whereby the application filed by the respondent under section 319 CrPC for impleading the petitioner as accused was allowed, was confirmed, the present petition has been filed. 2. Short facts of the case are that upon the complaint lodged by one Arun Kumar Modi a case was registered against Shaifuddin and Mahendra Rathi for the offence punishable under section 420, 467, 468 and 471 IPC. After taking cognizance and also after framing of charge the case was fixed for recording of evidence. The statement of complainant/ Arun Kumar Modi was recorded in part, thereafter the case was adjourned for the purpose of cross-examination, thereafter- an application for compromise was filed by the complainant and the accused/Saiffuddin which was allowed in part and parties were permitted to settle the dispute for the offence punishable under section 420 IPC which was compoundable, however, so far as offence under section 467 468 471, IPC is concerned, the application was dismissed as the offence is non-compoundable and case was listed for recording of further evidence. Thereafter an application was filed by the respondent under section 319 CrPC for impleading the petitioner as accused. The application was allowed by the learned trial Court against which revision petition was filed by the petitioner which was dismissed, hence this petition. 3. Learned counsel for the petitioner argued at length and submits that the complaint was lodged by complainant/Arun Kumar Modi on 25.4.1996 while the application filed by the respondent to implead the petitioner as accused was dated 17.11.2008 which was allowed by the learned trial Court vide order dated 29.12.2008. It is submitted that since at this belated stage after lapse of 12 years of filing of the challan application was filed, therefore, application ought to have been dismissed on the ground of delay only. Reliance is placed on a decision in the matter of State of Assam v. Abdul Halim, 1992 CriLJ 3438 wherein accused was being tried for an impleading the another person as accused the Hon'ble Supreme Court has observed that the respondent at this length of time which was 18 years shall not be directed to face the trial of Sessions case. Learned counsel for the petitioner submits that in the complaint which was lodged by the complainant, it was stated that the complainant gave loan to Saifuddin in February to June 1995 amounting to Rs. 5,00,000/- against the security of shares. It was further alleged in the complaint that loan was given to Saifuddin through Shailendra Agrawal, who is petitioner herein. It is submitted that in the complaint it is further stated that after taking loan neither interest was paid by Saifuddin nor the amount was returned. It is submitted that in the complaint, complainant was not allowed to transfer the shares. It is submitted that after repeated reminders Saifuddin introduced the complainant with Mahendra Rathi who was also the accused and Partner in The share business who assured that he will see that the loan amount is paid to the complainant. It is submitted that Saifuddin and Mahendra Rathi have. cheated the complainant by depositing forged shares. It is also submitted that in the complaint nothing has been alleged against the petitioner except the fact that the petitioner has introduced the comp1ainantwith the accused! Saifuddin. It is submitted that apart from this in the application filed by the respondent nothing has been stated which goes to show that prima facie petitioner was also guilty for the offence. For this contention reliance is placed on a decision of Hon'ble apex Court in the matter of Mohd.Shafi v. Mohd. Rafiq, AIR 2007.SC 1899 wherein Hon'ble apex Court has held that it is a discretionary jurisdiction in terms of section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exit a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence. It is submitted that in the present case no satisfaction was drawn by the learned trial Court while deciding the application under section 319 CrPC. It is submitted that petition filed by the petitioner be allowed and the impugned orders passed by learned Courts below be quashed. 4. It is submitted that in the present case no satisfaction was drawn by the learned trial Court while deciding the application under section 319 CrPC. It is submitted that petition filed by the petitioner be allowed and the impugned orders passed by learned Courts below be quashed. 4. Learned counsel for the respondent/State submits that against the impugned order whereby the application filed under section 319 CrPC was allowed by learned trial Court revision petition was filed by the petitioner which was dismissed, hence the petitioner cannot be allowed to file second revision petition under the garb of section 482 CrPC. It is submitted that the accused Saifuddin has not been discharged by the learned trial Court and prosecution is still pending against him. It is submitted that in the facts and circumstances of the case the discretionary jurisdiction was exercised by the learned revisional Court which cannot be interfered by this Court while exercising the jurisdiction under section 482 CrPC as there is documentary evidence against the petitioner. It is submitted that the petition filed by the petitioner be dismissed. 5. Section 319 (1) CrPC reads as under: "319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person from the offence which he appears to have committed." 6. From perusal of record, it appears that hand-written complaint was lodged by the complainant/Arun Kumar Modi which is dated 25.4.1996. In the said complaint nothing has been stated against the petitioner except the fact that the petitioner has introduced the complainant to accused/Saifuddin. In the examination-in-chief of the complainant which was recorded on 6.8.2006 nothing has been stated by the complainant against the petitioner. Thereafter for one reason or another the complainant could not be cross-examined on the request of accused/Saifuddin. In the examination-in-chief of the complainant which was recorded on 6.8.2006 nothing has been stated by the complainant against the petitioner. Thereafter for one reason or another the complainant could not be cross-examined on the request of accused/Saifuddin. Record reveals that after the application for compromise filed by the complainant and accused/Saifuddin on 16.10.2008 along with an application for leave to compromise as some of the offences were non-compoundable, which was allowed by the learned trial Court in part and parties were permitted to enter into compromise for an offence punishable under section 420 IPC which was compoundable. The application was filed by the respondent for impleading the petitioner as accused under section 319 CrPC which was allowed by learned trial Court by the impugned order. After going through the impugned order, it reveals that no satisfaction has been recorded by the learned trial Court to the effect that there exits a possibility that accused so summoned is in all likelihood would be convicted. Without recording any satisfaction, the application filed by the respondent after 12 years of filing of challan was allowed by the learned trial Court which was maintained by the learned revisional Court. It can safely be said that the application was filed with an inordinate delay. Apart from this, when the complainant entered into an compromise with the accused/Saifuddiri who has cheated the complainant and has also committed offence punishable under section 467,468,471 IPC, then, how the petitioner whose role was only to introduce the complainant to accused/Saifuddin can be impleaded as accused. In the facts and circumstances of the case, the petition filed by the petitioner is allowed and the impugned order passed by learned trial Court affirmed by learned revisional Court stands quashed.. 7. With the aforesaid observations, petition stands disposed of.