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2013 DIGILAW 1485 (MP)

Shailendra Dubey v. Dinesh

2013-11-29

S.R.WAGHMARE

body2013
ORDER 1. This M.Cr.C. has been filed under section 378(4) of the CrPC for grant of leave to file appeal. The applicant is aggrieved by the order dated 23.2.2011 passed by the Judicial Magistrate Class-I Dhar in criminal Case No.638/2009, dismissing the complaint of the petitioner filed under section 138 of Negotiable Instruments Act. The petition is barred by 409 days and the proper application has been moved by counsel for the petitioner vide I.A. No.3308/2012. 2. Brief facts of the prosecution case are that accused respondent No.1 Dinesh Mehta was known to the complainant Shailendra Dubey and due to personal need had borrowed for a sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand Only) from the complainant and in return had issued cheque bearing No. S.B/07-A/393134 dated 1.1.2009 to the complainant. On presentation in the bank, it was returned with remark insufficiency of funds and complainant had duly sent notice through his Counsel by Registered A.D. and Madhur courier. The accused failed to pay the said amount within the stipulated time hence the complainant, filed the complaint before the Judicial Magistrate. On trial, the trial Court dismissed the complaint, of the complainant on the ground that the cheque was not issued for any legal loan and signatures of the accused were not proved and there were material contradictions in the statements of the complainant and witness Chanchal. The execution of the cheque itself was disbelieved and notices were suspicious and the accused was acquitted. Being aggrieved the petitioner filed an appeal under section 372 (2) of CrPC of the amended proviso of the criminal procedure got appeal registered at No. 58/11 by the Sessions Judge, Dhar. 3. However during the pendency of the appeal placing reliance on Dharmveer Singh Tomar v. Ramrajsingh Tomar I.L.R. 2011 (MP) 1085 the appellate Court dismissed the appeal on the ground of maintainability of the appeal and the petitioner filed Criminal Revision No. 803/11 before the High Court. 3. However during the pendency of the appeal placing reliance on Dharmveer Singh Tomar v. Ramrajsingh Tomar I.L.R. 2011 (MP) 1085 the appellate Court dismissed the appeal on the ground of maintainability of the appeal and the petitioner filed Criminal Revision No. 803/11 before the High Court. Unfortunately, during the pendency of the criminal revision this High Court in the matter of Sheikh Taj Mansoori v. Sheikh Riyaz reported in 2011 (111) MPWN 122 held that the proviso of section 372 of the CrPC would not be applicable and the remedy of appeal under the said section was provided only to the “victim” and the complainant would not be a victim and would have to seek leave under section 378(4) of CrPC The Court held that: 7. At this juncture, if one take note of the provisions contained under section 378 (4) of the CrPC, one can find that wherever there is an order of acquittal passed in a case instituted on a competent jurisdiction to entertain an appeal against the order of acquittal is that of the High Court under section 378(4) CrPC that is to day if the High Court feels that it is the case where interference is required and permission is required to be given to file an appeal, then only an appeal can be entertained; where as he looks into the provisions of section 372 CrPC the power given by the Legislature for filing direct appeal, is power given to victim obviously the complainant and the victim cannot be treated as synonymous to be one and same person. 4. And hence appeal would have to be filed only under section 378(4) of the CrPC and the revision also thus got dismissed. Counsel submitted that the valuable time was lost in filing the present appeal and the application under section 378(4) of CrPC He prays that the delay be condoned and the appeal be admitted for hearing. 5. Counsel for the petitioner has vehemently urged the fact that the petitioner has a good case on merits and learned judge of the trial Court has erred in dismissing the complaint of the petitioner when there was ample evidence on record to the contrary. 5. Counsel for the petitioner has vehemently urged the fact that the petitioner has a good case on merits and learned judge of the trial Court has erred in dismissing the complaint of the petitioner when there was ample evidence on record to the contrary. Counsel further relied on Om puri v. State of Madhya Pradesh 2004 (4) MPHT 410 to state that rules of limitation are not meant to see that parties do not resort to dilatory tactics but seek their remedy promptly and further more primary function of a Court is to adjudicate the dispute between the parties. 6. Counsel urged that the Court be pleased to remit the matter to the appellate Court on the decision on merit. Counsel submitted that the limitation was not meant to destroy the rights of the parties but to advance substantial justice and counsel urged that permission for leave be granted to file appeal and inordinate delay in filing this application be condoned hence the application be allowed. 7. On perusal the above, I find that more than one year has been lost in pursuing the legal remedy available to the petitioner. However if wrong remedy has been followed by litigant it will not give him a right to extend time for the purpose of limitation. Besides it would not amount to “sufficient cause” for condoning the delay in filing the application. I find from the judgment of the appellate Court that it is based on proper appreciation of facts and proper scrutinization of evidence and valid and cogent reasons have been granted by the Court for the dismissal. 8. No good ground for interference is also made out since the trial Court found that execution of the cheque was itself doubtful and the transaction was also not proved as observed by the appellate Court and the signatures of the accused have also not been proved. The accused had denied the entire transaction and burden was definitely on the complainant to prove his case and complainant and his witness Chanchal had committed material contradictions and omissions in their testimony and failed to prove the offence under section 138 Negotiable Instruments Act against the accused. Then under such circumstances, I do not find any good ground to condone the bar of excessive limitation of 409 days accrued in the case. 9. The case is devoid of merit; besides being barred by limitation. Then under such circumstances, I do not find any good ground to condone the bar of excessive limitation of 409 days accrued in the case. 9. The case is devoid of merit; besides being barred by limitation. In view of the above, the leave is rejected and the application is also dismissed.