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Madhya Pradesh High Court · body

2009 DIGILAW 72 (MP)

Krishna Bhgwan Sharma v. Vijay Gupta

2009-01-15

N.K.MODY

body2009
ORDER 1. This order shall also govern the disposal of Cr.R. No. 394/08 which has been filed by the respondent No.3 against the order dated 30.1.2008 passed by First Additional Sessions Judge, Ambah District Morena of Fifth Additional Sessions Judge (Fast Track Court), Morena in Criminal Revision No. 162/07, whereby the case was .remanded against the respondent No.3 for taking cognizance, present petition has been filed. 2. In short, case of the petitioner was that the petitioner is farmer and a businessman. It was alleged that on 14.4.2004, 50 bags of mustard were kept by the petitioner in the warehouse being run by the respondent No.1. It was alleged that the receipt was issued by the respondent No.1 for depositing the mustard as stated above to the petitioner. It was alleged that since the petitioner was in need of money, therefore, the petitioner took a loan of Rs. 50,000/- from the Bank against the security of aforesaid mustard, where the respondent No.2 was posted as manager. Further case of the petitioner was that the loan amount was repaid by the petitioner on 10.7.2006 and receipt issued by the respondent No.1 was delivered by the respondent No.2 to the petitioner. It was alleged that respondent No.3 in collusion with respondents No.1 and 2 took delivery of mustard illegally which was kept by the petitioner. It was alleged that all the respondents have committed offences punishable under sections 420, 409 and 120B of IPC. It was prayed that after taking cognizance, respondents be convicted. After recording of the statements, the learned trial Court dismissed the complaint filed by the petitioner against which a revision petition was filed which was allowed in part and the order passed by the learned trial Court was set aside in part, whereby the cognizance was taken against the respondent No.3 while the order of dismissal of complaint against the respondent No.2 was maintained. 3. Being aggrieved by that part of the impugned order whereby the complaint was dismissed against the respondents No.1 and 2, present petition (M.CLC. No. 2398/08) has been filed. Against that part of the order, whereby the order of the trial Court was set aside against the respondent No.3, Criminal Revision No. 394/08 has been filed. 4. 3. Being aggrieved by that part of the impugned order whereby the complaint was dismissed against the respondents No.1 and 2, present petition (M.CLC. No. 2398/08) has been filed. Against that part of the order, whereby the order of the trial Court was set aside against the respondent No.3, Criminal Revision No. 394/08 has been filed. 4. Shri Sanjay Kumar Sharma, learned counsel for the petitioner argued at length and submits that the impugned order passed by the trial Court is illegal and deserves to be set aside. It is submitted that respondent No.3 took the delivery of the mustard illegally in collusion with respondents No.1 and 2. It is submitted that since custody of mustard was given by the respondents No.1 and 2, therefore, the revisional Court committed error in directing the trial Court, to take cognizance only against the respondent No.3. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner deserves to be allowed and that part of the order whereby the cognizance was not taken against the respondents No. 1 and 2 be set aside. 5. In Criminal Revision No. 394/08, learned counsel for the respondent No.3 Shri Brijesh Sharma submits that the learned Court below committed error in setting aside the order passed by the trial Court to the extent of respondent No.3. It is submitted that the respondent No.3 was authorized to take delivery of goods from the respondent No.1 and on the basis of authorization letter which was duly executed by the petitioner, the goods were delivered by the respondent No. 1 to the respondent No.3. It is submitted that in the facts and circumstances of the case, no offence has been committed by the respondent No.3. Hence, the revisional Court committed error in setting aside the order passed by the trial Court. 6. Shri Atul Kamthan, learned counsel for the respondents No.1 and 2 submits that the respondent No.3 was authorized by the petitioner and under that authority only goods were delivered by the respondent No.1. It is submitted that the trial Court has rightly exonerated the respondents No.1 and 2 and the order passed by the trial Court has rightly been maintained by the revisional Court. 7. It is submitted that the trial Court has rightly exonerated the respondents No.1 and 2 and the order passed by the trial Court has rightly been maintained by the revisional Court. 7. From perusal of record, it appears that 50 bags of mustard were deposited by the petitioner on 14.4.2004 with the respondent No.1 and the receipt issued by the respondent No. I was deposited by the petitioner with respondent NO.2-Bank for taking loan. Loan amount was repaid by the petitioner along with interest on 2.9.2006. Thereafter, goods were delivered by the respondent No.1 to the respondent No.3 on 7.10.2006 on the basis of letter of authorization which bears the signature of th1 petitioner. It also appears that in the letter of authorization, the petitioner and respondent No.3 (any of them) were authorized to take delivery 0 the mustard which was deposited. 8. From perusal of the complaint which is dated 17.3.2007 i.e. after 5 months of delivery of goods, it is evident that nothing has been stated by the petitioner in the complaint that the signatures were obtained by respondent No.1 and 2 in connivance with respondent No.3. In the facts and circumstances of the case, there was no justification on part to the revisional Court in setting aside the order of the trial Court and remanding the case back to take cognizance. Similarly, no illegality was committed by the revisional Court in not taking the cognizance against the respondent No.1 and 2. 9. In view of the aforesaid, the M.Cr.C. No. 2398/08 filed by the petitioner is dismissed and Cr.R. No. 394/08 filed by the respondent No.3 stands allowed and that part of impugned order passed by the revisional Court, whereby the case was remanded back against the respondent No.3 is set aside. 10. Copy of the order be placed in the file of Criminal Revision No.394/08.