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2011 DIGILAW 1922 (RAJ)

Mahaveer Prasad Patni v. P. D. Sharma

2011-09-07

NISHA GUPTA

body2011
JUDGMENT 1. - This criminal misc. petition under Section 482 Cr.P.C. has been filed against the order dated 30.1.2004, whereby the learned Magistrate has taken cognizance against the petitioner and the order dated 7.11.2006, whereby the learned Magistrate has dismissed the application of the petitioner for recalling the order taking cognizance. 2. The facts in brief are that a complaint was filed against the present petition, upon which the learned Magistrate took cognizance against the petitioner for offence under Section 138 of the Negotiable Instruments Act. 3. As regards the order dated 30.1.2004, contention of the learned counsel for the petitioner is that the cheque in dispute had never been -issued by the present petitioner and he is not connected with the Firm M/s Rajputana Service Centre and hence cognizance could not have been taken against him and the order taking cognizance is baseless. 4. All these contentions are the defence versions of the petitioner, which can be taken during the course of trial. The order by which cognizance has been taken against the present petitioner is undoubtedly a revisable order and the petitioner instead filing a revision petition before the appropriate Court has approached this Court by resorting to the provisions of Section 482 Cr.P.C. Hence the present petition is not maintainable against the order dated 30.1.2004. 5. So far as second order dated 7.11.2006 rejecting the application of the present petitioner for recalling the order dated 30.1.2004 is concerned, learned counsel has placed reliance on a decision of the Apex Court in Adalat Prasad v. Rooplal Jindal, reported in (2004) 7 SCC 338 . 6. I have carefully gone through the law cited at the Bar. The Apex Court in Adalat Prasad's case, supra has categorically held as under: "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 provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 Cr.P.C., because the Code does not contemplate a review of an order". 7. Thus, looking at the above legal position, this Court finds no infirmity in the order dated 7.11.2006 passed by the learned Court below. 8. 7. Thus, looking at the above legal position, this Court finds no infirmity in the order dated 7.11.2006 passed by the learned Court below. 8. Consequently, the petition being devoid of merit is liable to be dismissed and, it, is dismissed accordingly.Petition dismissed. *******