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2013 DIGILAW 687 (RAJ)

Rameshwar Lal v. State of Rajasthan

2013-04-05

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioner challenging the order dated 2.11.2012 passed by the learned Addl. Sessions Judge, Nohar in Criminal Revision No. 40/2012, whereby, the revision petition filed by the petitioner-complainant challenging the order dated 4.5.2012 passed by the learned Judicial Magistrate, First Class, Rawatsar in FR No. 15/2008 has been dismissed. 2. Briefly stated the facts necessary for the disposal of this misc. petition are that the petitioner-complainant filed a complaint before the learned Judicial Magistrate, First Class Rawatsar alleging inter alia that on 6.9.1999 he had opened an account No. 227 in the Bank of Rajasthan Branch Rawatsar in the name of Ratan Emporium. The petitioner was issued a cheque book bearing Cheque Nos. M-488231 to M-488240 by the bank. The petitioner thereafter signed two cheques from the aforesaid cheque book and then put the same in the cash book of his shop named Pooja Misthan Sweets. The complainant alleged that the accused Madan Lal who was engaged in the business of selling milk used to come to his aforesaid shop for selling milk to him. The signed blank cheque of the petitioner bearing Cheque No. M-488232 was misplaced in the month of December, 2007. The petitioner received a notice issued by Madan Lal on 20.1.2008. It was averred in the notice that the petitioner had borrowed a sum of Rs. 5,00,000/- in cash from Madan Lal and in lieu of repayment of the loan, a cheque No. M-488232 was issued to him and the same was bounced on presentation. The complainant alleged that the respondent No. 2 committed the theft of his signed cheque from the shop and thereafter misused the same by making fraudulent entries therein. 3. The complaint was sent to the Police under Section 156 (3) Cr.P.C. and an FIR No. 68/2008 was registered at the Police Station Rawatsar for the offences under Sections 380, 465, 467 and 471 IPC and investigation commenced. The police after thorough investigation of the matter filed a FR in the court. Summons were issued to the petitioner. The petitioner appeared in the court and filed a protest petition. The statement of the petitioner and his witnesses were recorded under Sections 200 and 202 Cr.P.C. Thereafter, the protest petition filed by the petitioner was rejected by the learned Magistrate by order dated 4.5.2012. Summons were issued to the petitioner. The petitioner appeared in the court and filed a protest petition. The statement of the petitioner and his witnesses were recorded under Sections 200 and 202 Cr.P.C. Thereafter, the protest petition filed by the petitioner was rejected by the learned Magistrate by order dated 4.5.2012. The petitioner challenged the learned Magistrate's order by way of a revision and the learned revisional court too has affirmed the order passed by the learned Magistrate and has rejected the revision by order dated 2.11.2012. 4. Now, the petitioner has approached this Court by way of instant misc. petition assailing the orders passed by the learned courts below. 5. Learned counsel for the petitioner Shri Rajender Soni submits that the learned trial court as well as the learned revisional court have committed a grave error of facts as well as law in rejecting the petitioner's complaint. He submits that the petitioner's signed cheque was misplaced and Madan Lal misused the same by making fraudulent entries therein and by presenting the same in the Bank for payment. Learned counsel submits that Madan Lal's acts ex facie constituted the offences of forgery and cheating, for which, the petitioner had filed the complaint and therefore the learned trial court committed a grave error in rejecting the protest petition filed by the petitioner and accepting the FR filed by the police. He further submits that the revisional court has also fallen in the same error. He thus prays that the instant misc. petition deserves to be accepted. 6. Heard learned counsel for the parties and perused the orders impugned passed by the learned courts below and the documents filed on the record. 7. It is not in dispute that the complaint which was filed by the petitioner was filed after receiving the notice sent by Madan Lal regarding bouncing of the cheque in question. The cheque was allegedly stolen in the month of December, 2007. The petitioner did not file any report in relation to his cheque being stolen nor did he inform his Bank immediately about the cheque having been misplaced. The I.O. has drawn a conclusion in the FR that the petitioner had taken a sum of Rs. 5,00,000/- as loan from Madan Lal and that the cheque in question was issued by the petitioner for returning the loan amount. The I.O. has drawn a conclusion in the FR that the petitioner had taken a sum of Rs. 5,00,000/- as loan from Madan Lal and that the cheque in question was issued by the petitioner for returning the loan amount. The cheque was dishonored on being presented in the Bank on account of insufficient funds. A complaint was filed by Madan Lal against the petitioner under Section 138 of the N.I. Act. The police came to a conclusion that the present complaint which has been filed by the petitioner is as a counter blast to the complaint filed by the respondent No. 2 against the petitioner. The learned Magistrate whilst rejecting the complaint filed by the petitioner also observed that in the complaint filed by Madan Lal under Section 138 of the N.I. Act, the petitioner had been convicted on 4.5.2012. The learned Magistrate thus concluded that as for the very same cheque in relation whereto the complaint was filed by the petitioner, the petitioner had been convicted, as such, there could be no justification in allowing the prosecution of Madan Lal for the alleged misuse of the same cheque. 8. In the backdrop of the above-mentioned factual scenario, this Court has no hesitation in arriving to a conclusion that the learned Magistrate committed no error in rejecting the petitioner's complaint. The cheque was allegedly stolen in the month of December, 2007. The petitioner did not take any action in this regard and waited for a substantially long period of time till he received Madan Lal's notice about the cheque having bounced on being presented. Thereafter, belatedly the complaint was filed in the court. The learned Magistrate whilst accepting the FR has observed that the petitioner has been convicted in relation to the very same cheque, for which, he filed the complaint. Therefore, this Court is of the opinion that if Madan Lal is permitted to be prosecuted in relation to the same cheque, it would lead to a situation of severe anomaly and would by itself be a gross abuse of the process of the court. 9. The Hon'ble Apex Court in the case of Sunil Kumar v. Escorts Yamaha Motors Ltd. and Others, reported in (1999) 8 SCC 468 considered almost the same situation wherein the FIR was filed after receiving the notice of the dishonor of the cheque. 9. The Hon'ble Apex Court in the case of Sunil Kumar v. Escorts Yamaha Motors Ltd. and Others, reported in (1999) 8 SCC 468 considered almost the same situation wherein the FIR was filed after receiving the notice of the dishonor of the cheque. The Hon'ble Apex Court disapproved such practice and quashed the prosecution. 10. In the case at hand, the situation is even graver. In the present case, the petitioner has been convicted for the very same cheque in relation whereto he has initiated the prosecution against the holder of the cheque. Therefore, this court is of the opinion that the learned trial court has committed no error in rejecting the petitioner's complaint. The order passed by the learned Magistrate has rightly been affirmed by the revisional court.Thus, the present misc. petition under Section 482 Cr.P.C. is nothing but a second revision in the garb of the misc. petition. A second revision by the same party is barred by virtue of Section 397(3) Cr.P.C.Resultantly, this misc. petition being bereft of any force is hereby dismissed.Petition dismissed. *******