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2011 DIGILAW 725 (MP)

Mohan Mandelia v. Harish Sharma

2011-07-05

S.N.AGGARWAL

body2011
JUDGMENT This petition under Section 482 of Code of Criminal Procedure, 1973 is directed against the order dated 4th December, 2009 passed by the Revisional Court in Criminal Revision No. 369/09 affirming the order of the Trial Court dated 1st September, 2009 dismissing his complaint filed against respondent Nos. 1 and 2 for offences under Sections 417, 418, 419, 420, 379 and 120-B of IPC. Briefly stated the facts giving rise to this petition are that the petitioner being the complainant had lodged a report with the police of Police Station University on 5th April, 2007 that he had an account in IDBI Bank and on 5th April, 2007, when he was going to bank for getting the vehicle financed, at that time, he was having 7 cheques with him, bearing Nos. 499127, 499128, 499135 to 499139, some of which were signed and some were unsigned and they all were lost when he was on his way. Subsequently, after about an year of lodging of the above complaint, the petitioner (complainant) came to know that Smt. Sitabai Sharma, mother of respondent Nos. 1 and 2 had presented one out of seven cheques, which the petitioner had lost on 5th April, 2007, for encashment in her bank account by forging the amount of cheque showing it to be of Rs. 16 lacs and when he came to know of this fact, he lodged a complaint case against the mother of respondent Nos. 1 and 2 with regard to presentation of cheque of Rs. 16 lacs being one out of the seven lost cheques, but the said complaint filed by the petitioner against the mother of respondent Nos. 1 and 2 alongwith them was dismissed by the Trial Court and the said order attained finality as it was not assailed by the petitioner before any Higher Court. However, after the first complaint against the mother of respondent Nos. 1 and 2 alongwith them was dismissed by the Court, the respondent Nos. 1 and 2 presented two more cheques out of seven lost cheques in their respective bank accounts, one bearing No. 499137 was for an amount of Rs. 2000 presented by respondent No. 1 in his bank account for encashment and the other cheque bearing No. 499136 was of Rs. 4000/- and was presented by respondent No. 2 for encashment in her bank account. 2000 presented by respondent No. 1 in his bank account for encashment and the other cheque bearing No. 499136 was of Rs. 4000/- and was presented by respondent No. 2 for encashment in her bank account. Since these two cheques presented by the respondent Nos. 1 and 2 were not issued by the petitioner, the petitioner lodged a complaint case against the respondent Nos. 1 and 2 for proceeding against them under Section 417, 418, 419, 420, 379 and 120-B of IPC, which was dismissed by the Trial Court. The said order of the Trial Court has been affirmed by the Revisional Court vide impugned order dated 4th December, 2009 in Criminal Revision No. 369/09. It is this order of the Revisional Court which is under challenge in the present petition under Section 482 of Cr.PC. The case of the petitioner is that the Trial Court in the course of recording of pre-summoning evidence had allowed respondent Nos. 1 and 2 also to intervene and participate in the proceedings without reaching to the stage of their summoning under Section 204 of Cr.PC. The impugned order of the Revisional Court is based upon the fact of dismissal of earlier complaint of the petitioner against the mother of respondent Nos. 1 and 2 including them. Para 7 of the impugned order, which contains foundation of the said order, is relevant and is extracted herein below:- XXX XXX XXX On a perusal of the reasoning given by the Revisional Court as a ground of dismissal of the subsequent complaint of the petitioner, it may be seen that the Trial Court as well as the Revisional Court have overlooked the fact that the subsequent complaint filed by the petitioner against respondent Nos. 1 and 2 pertained to two cheques bearing Nos. 49913.6 and 499137, which were included in the list of seven lost cheques regarding which complaint was lodged* by the petitioner with the police two years back on 5th April, 2007 and those two cheques out of the seven lost cheques were alleged to have been misused by respondent Nos. 1 and 2 by depositing the same for encashment in their respective bank accounts. In the opinion of this Court, from the complaint of the petitioner read alongwith his pre-summoning evidence, a prima facie case is clearly made out for proceeding against respondent Nos. 1 and 2 for offence committed by them. 1 and 2 by depositing the same for encashment in their respective bank accounts. In the opinion of this Court, from the complaint of the petitioner read alongwith his pre-summoning evidence, a prima facie case is clearly made out for proceeding against respondent Nos. 1 and 2 for offence committed by them. It was not a case for dismissal of his complaint only because his earlier complaint pertaining to some other cheque misused by the mother of respondent Nos. 1 and 2 had been dismissed. I would like to note that this Court could not get the benefit of arguments on behalf of respondent Nos. 1 and 2, who were duly served with the notice of present petition and had appeared also before the Court on previous dates. In the facts and circumstances of the case and for the reasons given herein above, this petition is allowed. Impugned order of the Trial Court dated 1-7-2009'as well as order dated 4th December, 2009, passed by the Revisional Court in Criminal Revision No. 369/09 are hereby set aside. The Trial Court is directed to proceed against respondent Nos. 1 and 2 on the complaint of the petitioner in accordance with law. The parties are directed to appear before the Trial Court for directions at 2.00 p.m. on 27th July, 2011. This petition stands disposed of accordingly. At this stage, Shri A.R. Shivhare, learned Counsel has appeared on behalf of respondent Nos. 1 and 2 and after he appeared, he was also heard in the case. The only contention put forward by Shri A.R. Shivhare, learned Counsel appearing on behalf of respondent Nos. 1 and 2 is that no offence is prima facie made out against respondent Nos. 1 and 2 because the petitioner himself had given coloured photo-copy of the cheques in question to respondent Nos. 1 and 2. Learned Counsel for respondent Nos. 1 and 2 has also taken an alternative plea that the petitioner himself had deposited the cheque in question in the accounts of respondent Nos. 1 and 2, for which a notice was also given by his clients to the bank. All these contentions urged by learned Counsel for respondent Nos. 1 and 2 are contentions in their defence and the same cannot be a ground to review the decision already pronounced in the Open Court in his absence. The respondent Nos. 1 and 2, for which a notice was also given by his clients to the bank. All these contentions urged by learned Counsel for respondent Nos. 1 and 2 are contentions in their defence and the same cannot be a ground to review the decision already pronounced in the Open Court in his absence. The respondent Nos. 1 and 2 shall be entitled to prove their defence in proceedings before the Trial Court as per law. It is made clear that any observation contained in this order shall not influence the final decision of the case by the Trial Court in any way. Counsel appearing on behalf of respondent Nos. 1 and 2 has been apprised of the next date fixed before the Trial Court, i.e., 2.00 p.m. on 27th July, 2011. A copy of this order be sent to the Trial Court for information and necessary action.