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2013 DIGILAW 2231 (BOM)

Rajiv Gandhi Sahakari v. State of Maharashtra

2013-10-22

ABHAY M.THIPSAY

body2013
Judgment : Rule. By consent, Rule made returnable forthwith. By consent, heard finally. 2. The petitioners are the accused Nos. 1, 2 and 3 respectively, in R.T.C. No. 299/2006 pending before the Chief Judicial Magistrate, Ahmednagar. The said case is in respect of offences punishable under Section 420 of the Indian Penal Code (IPC), Section 409 of IPC, Section 467 of IPC, Section 471 of IPC read with Section 34 of IPC. It arises on a complaint made by the respondent no.2 herein. The respondent no.2, shall, hereinafter, be referred to as “the complainant”, for the sake of clarity and convenience. 3. After examining the complainant on oath, the learned Chief Judicial Magistrate, Ahmednagar formed an opinion that there were sufficient grounds for proceeding against the petitioners and also one more – Arun Bhalsing who was named as the accused no.4 in the complaint, with respect to offences punishable under Section 467 of IPC and Section 471 of IPC, read with Section 34 of IPC. The petitioners, being aggrieved by the order issuing process, moved the Court of Sessions challenging the same by filing an application for revision, but the learned Additional Sessions Judge, who heard the revision application, did not find any merit therein and dismissed the same. It is under these circumstances, that the petitioners have approached this Court by invoking constitutional jurisdiction of this Court. 4. I have heard the learned counsel for the petitioners at length. As suggested by the petitioners, Record and Proceedings were also called for, at the admission stage itself. 5. I have gone through the complaint, the substance of which is as follows: That, the complainant had taken a loan of Rs. 5,000/- from the petitioner no.1 which is a credit co-operative society. As a security for the repayment of the loan, the petitioner society had taken two blank signed cheques from the complainant and it was thereafter that the loan of Rs. 5,000/- was sanctioned in favour of the complainant. That, the complainant repaid an amount of Rs. 19,000/- towards the loan and interest therein on 20.08.1995, and thereafter, the petitioner society issued a demand notice for a balance of Rs. 370/-. The complainant objected to such a demand, but the petitioners retained certain documents produced by the complainant, with them, for examination of the complainant’s claim that nothing was due. The petitioners also acknowledged the receipt of the said documents. 370/-. The complainant objected to such a demand, but the petitioners retained certain documents produced by the complainant, with them, for examination of the complainant’s claim that nothing was due. The petitioners also acknowledged the receipt of the said documents. However, thereafter the petitioners falsely put the figure of Rs. 5,662/- on one of the two blank cheques and prosecuted the complainant with respect to an offence punishable under Section 138 of the Negotiable Instruments Act when the said cheque was dishonoured. 6. Thereafter, on the other blank cheque, the petitioners put a false and imaginary figure of Rs. 44,110/- and deposited the same in the bank on 03.09.2005. When that was dishonured, a case in respect of an offence punishable under Section 138 of the Negotiable Instruments Act with respect to the dishonour of the second cheque, was also filed by the petitioner no.1 against the complainant. According to the complainant, it was evident that the previous cheque and subsequent cheque both were given to the petitioner no.1 on one and the same date i.e. on 16.08.1994, and that, by putting false dates and false figures on the cheques without there being any amount due and payable, the cheques were deposited; and that the petitioners thus committed a number of offences including offence punishable under Section 420 of IPC, Section 409 of IPC, Section 193 of IPC, Section 196 of IPC., etc. As aforesaid, the process was, however, issued by the Magistrate only in respect of offences punishable under Section 467 of IPC and Section 471 of IPC read with Section 34 of IPC. 7. I have gone through the order passed by the Magistrate, whereby he issued process against the petitioners and the 4th accused. The fourth accused is a practicing advocate and is said to be the Legal Advisor of the petitioner no.1. The order issuing process against him has been challenged by him by filing a separate Writ Petition, which has also been heard by me, but the same is being disposed of by a separate order, as the case of the said accused i.e. Accused no.4 Arun B. Bhalsingh is on a different footing from that of the present petitioners. 8. The order issuing process against him has been challenged by him by filing a separate Writ Petition, which has also been heard by me, but the same is being disposed of by a separate order, as the case of the said accused i.e. Accused no.4 Arun B. Bhalsingh is on a different footing from that of the present petitioners. 8. The Magistrate formed an opinion that there were sufficient grounds for proceeding against the petitioners with respect to the offences punishable under Section 467 of IPC and Section 471 of IPC read with Section 34 of IPC. In the light of the averments made in the complaint, I seen no error or illegality in the order passed by the Magistrate. 9. A number of contentions were raised before the Court of Sessions in revision application, that was filed by the petitioners challenging the order issuing process against them, but the Additional Sessions Judge has rightly came to the conclusion that there was nothing illegal or improper in the order passed by the Magistrate. 10. It is not possible to hold that the complaint does not disclose any case for proceeding against the petitioners. In my opinion, the view of the matter, as taken by the learned Magistrate and by the learned Additional Sessions Judge, is proper and legal, so far as the petitioners are concerned; and though there exists doubt about the propriety of the decision to proceed against the original accused no.4, the order issuing process, so far as the present petitioners are concerned, certainly does not warrant any interference. 11. In the arguments advanced by the learned counsel for the petitioners the emphasis has been mainly on the fact that `since the complainant has admitted his signatures on the cheque, even assuming that blank cheques had been given, in law, it amounted to authorizing the petitioner no.1 to fill the amount therein, and that, if the petitioners have filled in the amount which was due and payable to them, then no offence has been committed by them.’ He referred to the provisions of Section 20 of the Negotiable Instruments Act in support of this contention. Section 20 cannot be construed in a manner so as to hold that it authorizes a payee to put any amount on the cheque, irrespective of whether any amount is due and payable and irrespective of what is the intention or understanding between the parties with respect to the amount. The learned counsel for the petitioners placed reliance on a decision of the Supreme Court of India in the case of T. Nagappa V/s Y.R. Muralidhar reported in 2008 AIR (SC) 2010 in support of his contentions. He has taken me through some parts of the said reported judgment. I am unable to see how this decision helps the petitioners. That was a case where the accused who was being prosecuted on the accusation of an offence punishable under Section 138 of Negotiable Instruments Act contended that the cheque had been signed by him much before it was presented to the bank, and that, it had been given for security; and that, it had been misused by the complainant by putting an amount, which the accused had never told to the complainant to do. The Magistrate did not accept this contention and the High Court also dismissed the revision application filed by the accused. The accused had then carried the matter to the Supreme Court of India. A similar contention with respect to the provisions of section 20 of the Negotiable Instruments Act was raised before Their Lordships of the Supreme Court, but Their Lordships did not accept this contentions and clearly observed that by Section 20 of the Negotiable Instruments Act only a right has been created in the holder of the cheque to complete an incomplete negotiable instrument, but that the said provision has a rider, namely, that no person other than a holder in the due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid therein. Not only this judgment does not assist the petitioners in any manner, the observations made therein, particularly those in para no.7 of the reported judgment clearly go against the petitioners’ contention. The Appeal was allowed and the order of the High Court was set aside by the Supreme Court of India. 12. Reliance is also placed on a decision rendered by the learned Single Judge of this Court in 2007(4) Bom. The Appeal was allowed and the order of the High Court was set aside by the Supreme Court of India. 12. Reliance is also placed on a decision rendered by the learned Single Judge of this Court in 2007(4) Bom. C.R. 404, but I fail to see how the same has any relevance to the facts of this case. Here, the specific case of the complainant is that a cheque given in the year 1994, which was blank and singed, and of the existence of which no mention was made in some previous proceedings between the parties, was suddenly presented for encashment by putting an imaginary sum thereon. It is impossible to suggest that such action would not amount to the offences, in respect of which process has been issued. 13. In my opinion, the complaint, indeed, makes out a case for proceeding against the petitioners in respect of aforesaid offences. In any case, it is well settled that a Magistrate has a discretion in the matter of issuance of process and once the discretion has been exercised by him after taking all the relevant aspects of the matter into consideration, his discretion is not liable to be interfered with by the Superior Courts. This is not a case where the complaint did not discloses the ingredients of the alleged offences. 14. Moreover, there is another reason for not interfering in the matter. It is that on the basis of the same cheque, the complainant is being prosecuted on the allegation of having committed offence punishable under Section 138 of the Negotiable Instruments Act. In other words, the petitioner no.1 has putforth its version as to how it become possessed of the said cheque and under what circumstances, they presented it, etc. The present complaint is the version of the complainant with respect to the same transaction. Since the petitioner no.1 is prosecuting the complaint against the complainant in the present case with respect to an offence punishable under Section 138 of the Negotiable Instruments Act, their version would be coming before the Court. It would be impossible to hold in the circumstances, that the complainant while defending the case against him may only take a defence that the cheque in question is forged, but for the alleged forgery, he cannot prosecute the present petitioners. It would be impossible to hold in the circumstances, that the complainant while defending the case against him may only take a defence that the cheque in question is forged, but for the alleged forgery, he cannot prosecute the present petitioners. Clearly, it would be in the interest of justice to permit both the versions of said transaction to be brought before the Court. 15. There is no merit in the Petition. 16. The Petition is dismissed. 17. Rule is discharged. The learned Magistrate shall proceed further with the case, in accordance with law. 18. At this stage, on the oral prayer of the learned counsel for the petitioners, it is directed that the interim order shall continue to remain in force for a period of three weeks, notwithstanding the dismissal of the petition.