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2011 DIGILAW 1400 (BOM)

Ajay v. Jai Matadi Electronics

2011-11-21

A.P.BHANGALE

body2011
Judgment : 1. By consent of respective counsel, the matter is taken up for final hearing. 2. By this Revision Application, the revision applicants pray for quashing and setting aside the impugned judgment and order dated 29.11.2010 passed by the learned Sessions Judge, Wardha in Criminal Revision No.85/2010 whereby the learned Judge directed the trial Magistrate to appreciate the evidence of complainant to find out whether a case is made out under section 420 of the Indian Penal Code. The order dated 22.6.2010 passed by the trial Magistrate on Exh. 57 was also set aside. 3. It appears that a complaint was lodged by the respondent-complainant against the present revision-applicants on the ground that the accused no.1 Ajay Ramesh Bhute came in the shop of complainant in order to buy a television of Sansui company for a sum of Rs,19,990/on credit with promise that the amount of price will be paid soon. Since the proprietor of the complainant M/s Jai Matadi Electronics was on cordial terms with the accused Ajay, he agreed to sell the TV on credit. Pursuant to the transaction, the accused gave a cheque bearing No. 037708 dated 14.9.2006 drawn upon Wardha Nagari Sahakari Adhikosh Bank, Main Branch, Wardha. Accordingly, the cheque was presented; but the Banker by memo dated 15.9.2006 informed the complainant that since the account of the accused was closed, the cheque could not be encashed. Thereafter the complainant sent a notice dated 18.9.2006 by registered post acknowledgment due Which was received by accused no.1Ajay. Even thereafter he did not pay the price. The notice was also sent under certificate of posting, to which the accused sent reply dated 26.9.2006 and denied the transaction categorically, contending that the cheque given was not drawn upon his own account and it is for the complainant to seek as to on whose account the cheque was drawn. The complainant came to know on enquiry that the accused no.1 had deliberately, in order to harass the complainant, gave cheque which was in fact drawn upon account belonging to accused no.2 Ramesh Sadashiv Bhute, who was also in know of the entire transaction. Thus, both of them had harassed the complainant although they knew that the account was closed. The complainant came to know on enquiry that the accused no.1 had deliberately, in order to harass the complainant, gave cheque which was in fact drawn upon account belonging to accused no.2 Ramesh Sadashiv Bhute, who was also in know of the entire transaction. Thus, both of them had harassed the complainant although they knew that the account was closed. Left with no option, the complainant was constrained to prosecute them for alleged offence punishable under section 138 of the Negotiable Instruments Act, (in short “the N.I. Act”) as also under section 420 of the Indian Penal Code. 4. It appears that in support of the complaint, Bharat Ramswarup Kungar, Proprietor had verified the complaint in respect of the facts mentioned above. The complainant was also allowed to be cross-examined on behalf of the accused in respect of statement made on oath by or on behalf of the complainant. Under these circumstances, the learned Magistrate was called upon to issue process under section 138 of the N.I. Act as also u/s 420 IPC.. However, it appears that the process issued by the learned Magistrate was limited to Section 138 of the N.I. Act. Thus, the complainant moved an application Exh. 57 pointing out to the Magistrate the evidence of the complainant and witness on behalf of the complainant and also the accusations made under section 420 IPC and prayed for to take into consideration the pleadings of the complainant so as to frame charge against the accused u/s 420 of IPC as well. The learned Magistrate who heard the application Exh. 57, made observations that no special ingredients other than as alleged in the complaint, have been made out to attract Section 420 of IPC and that even though the charge can be altered or added at any stage, still sufficient ingredients must be proved for attracting section which is to be altered. 5. Learned Advocate for the respondent no.1/complainant took exception to the observations in the order passed by the Magistrate below Exh. 57 and challenged the same in Criminal Revision Application No.85/2010. The learned Sessions Judge who made reference to impugned order and observations made therein, found that no comments were made regarding the evidence of the complainant to determine whether it made out an offence under section 420 of IPC. 57 and challenged the same in Criminal Revision Application No.85/2010. The learned Sessions Judge who made reference to impugned order and observations made therein, found that no comments were made regarding the evidence of the complainant to determine whether it made out an offence under section 420 of IPC. The learned Sessions Judge also found that the learned Magistrate did not properly appreciate the evidence led before him, before passing the order rejecting Application Exh. 57. Thus, the learned Sessions Judge was pleased to set aside the order passed by the Magistrate below Exh. 57 on 22.6.2010 and directed the Magistrate to appreciate the evidence of the complainant to know whether complainant made out a case under section 420 of the IPC. 6. Learned Advocate for the applicants submitted that the impugned order passed by the Sessions Judge palpably failed to consider the order of the Magistrate in its totality including verification and evidence adduced by the complainant while observing that no comments were made by the Magistrate regarding the evidence of the complainant. It is further criticized that the revisional court acted contrary to the facts on record and passed the perverse order. 7. Learned Advocate for the respondent no.1 /complainant as well as learned Additional Public Prosecutor for respondent No.2 supported the impugned order on the ground that when application was filed specifically so as to consider the evidence of the complainant which was recorded, the learned Magistrate failed to appreciate the triable accusation which was clearly made out by the complainant in the course of his evidence. The complainant was also cross-examined on behalf of the accused. Under these circumstances, the direction passed by the learned Sessions Judge to the Magistrate to consider the evidence in accordance was just, proper and legal. 8. Learned Advocate for the complainant (respondent no.1) also made reference to ruling in SharanP. The complainant was also cross-examined on behalf of the accused. Under these circumstances, the direction passed by the learned Sessions Judge to the Magistrate to consider the evidence in accordance was just, proper and legal. 8. Learned Advocate for the complainant (respondent no.1) also made reference to ruling in SharanP. Khanna vs. Oil and Natural Gas Corporation Limited and another reported in 2010 Cri.L.J. 4256(Bombay High Court) wherein this Court has made observations in respect of prosecution under section 138 of the N.I. Act along with section 420 of the IPC making reference to Section 220 of Cr.P.C. This Court had observed that although the offence under section 420 IPC and offence under section 138 of the N.I. Act are totally distinct and their ingredients are different still if both offences were committed during the same transaction the accused could have been charged and tried for both the offences during single trial as per Section 220 of Cr.P.C. Seciton 220 of Cr.P.C. Is an enabling provision whereby two or more different offences may be tried together by the Court although the terms used in Section 220 Cr.P.C. are enabling and not mandatory. 9. Looking to the ruling in Sharan P. Khanna's case (supra) as also the legal position in this regard, it must be said that at the stage of framing charge the Court need not enter into an elaborate enquiry in sifting and weighing the material not it is necessary for the Court at that stage to delve deeper into various aspects of the case. Suffice it to say that the duty of the Judge concerned at the stage is to apply his mind to the material on record to form his opinion as to whether there is sufficient ground to proceed further against the accused if prima facie case is made out against the accused the charge is required to be framed. Even a strong suspicion against the accused is sufficient so as to frame charge against the accused at the prima facie stage of framing charges in a criminal case. The Magistrate need not be fully satisfied about the proof of essential ingredients of an offence which are required to be proved at the final hearing of the case. It appears that this distinction was overlooked by the learned Magistrate while passing the order dated 22.6.2010 below Application Exh.57. The Magistrate need not be fully satisfied about the proof of essential ingredients of an offence which are required to be proved at the final hearing of the case. It appears that this distinction was overlooked by the learned Magistrate while passing the order dated 22.6.2010 below Application Exh.57. Therefore, interference with the said order by the learned Sessions Judge in exercise of revisional jurisdiction was necessary and proper. That being so, no interference is required in the impugned judgment and order passed by the learned Sessions Judge. 10. Revision Application is dismissed, with no order as to costs.