Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1568 (MP)

Jayant Thirani v. Gyanchand Dubey

2014-12-02

S.K.PALO

body2014
ORDER 1. Petitioners have preferred this revision petition under section 482 of CrPC for invoking the inherent jurisdiction of this Court and seeking the relief to quash the order dated 22.5.2014 passed by the learned ASJ, Gwalior in Criminal Revision No.397/2013 whereby the order dated 25.9.2013 of the trial Court in unregistered complaint Gyanchand Dubey v. Jayant Thirani and other, was set aside and the trial Court was directed to take cognizance of offence under section 420 of IPC. 2. Brief facts of the dispute are as under : Respondent-complainant filed complaint under sections 420, 467, 468, 471/34 of IPC against the petitioners before the JMFC, Gwalior, stating that the complainant was working as Assistant Works Manger in Supersack Division of Midland Plastic Ltd. The complainant resigned from the company on 1.10.2010. For the settlement of his dues complainant received cheque of Rs.95,000/- dated 30.8.2011 and another cheque Rs.93, 365/- dated 31.8.2011. Both these cheques were presented before the Bank on 27.2.2012 for encashment. These cheques were returned for there was insufficient fund. The respondent-complainant filed a complaint under sections 420, 467, 468, 471 of IPC before the JMFC. 3. The learned JMFC vide order dated 25.9.2013 passed the order, stating that the cheques were presented for encashment after a period of six months. Therefore, for the purpose of honouring the cheque the company is not liable. The the trial Court also opined that no case is made out against the proposed accused persons-petitioners. 4. The respondent-complainant filed a revision before the learned ASJ, Gwalior, which was registered as Criminal Revision No.397/2013. The learned ASJ, Gwalior has passed the impugned order on 22.5.2014. 5. In this revision, the petitioners/proposed accused persons were not noticed. The revisional Court held that on 27.2.2012 the complainant presented both the cheques within the period of six months. Therefore, without giving any notice to the other parties, (i.e. the petitioners), the impugned order was passed and setting aside the order of the trial Court dated 25.9.2013, directing the trial Court to proceed against the petitioners under section 420 of IPC. 6. The petitioners challenged the impugned order, on the ground that the petitioners were not given an opportunity in the revisional proceedings to defend their case. 6. The petitioners challenged the impugned order, on the ground that the petitioners were not given an opportunity in the revisional proceedings to defend their case. Dishonor of cheques for not having sufficient fund does not constitute any offence under section 420 of IPC, as exclusive provisions of section 138 of Negotiable Instruments Act is provided for the same. Therefore, the revisional Court has committed error. Hence, the impugned order be set aside. 7. Heard both parties at length. 8. Learned counsel for the respondent opposed the submissions and submitted that the accused petitioners were absent and not served before the trial Court and the complaint was dismissed at a pre notice stage. Therefore, at the revisional Court it was not necessary to notice the accused persons/petitioners. 9. It is further contended that before taking cognizance of offence, the accused has no right whatsoever to defend it’s case. Hence, in the revisional Court if at all they are not noticed the same is not irregular. 10. Before proceeding with the matter, it is necessary to understand the provisions of section 398 of CrPC, which read as follows : “Power to order inquiry : 398. On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or sub-section (4) of section 204, or into the case or any person accused of an offence who has been discharged : Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.” 11. During the course of arguments, learned counsel for the respondent has drawn attention of this Court to the provisions of section 362 of CrPC and submitted that the petitioners instead of filing application under section 362 of CrPC could have filed this application before the revisional Court, if they were aggrieved with the order they could have requested the revisional Court to remove the mistake. 12. 12. It is necessary to quote section 362 of CrPC for better understanding of the provision which reads as under : “Court not to alter judgment : 362. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” 13. This provision is very clear and the Court passing the order cannot review the same except to correct the clerical or arithmetical error. 14. This is not clerical or arithmetical error. Hence, provision of section 362 is not not attracted in the present circumstances. 15. The learned counsel for respondent placed reliance in the case of Vishnu Agarwal v. State of U.P. and another, reported in 2011(II) MPWN 126, in which it is held that, “Criminal P.C., 1973 -- S. 362 -- provision cannot be considered in rigid manner to defeat the ends of justice - High Court rightly recalled its order and directed the case to be listed for fresh hearing”. 16. Similarly, counsel for respondent has also been placed reliance in the case of State of Madhya Pradesh v. Jitendra Singh, reported in 2013(III) MPWN 75 , in which it is held that, “Criminal Procedure, 1973 -- S.362 -– Court has inherent power to recall earlier order in exceptional circumstances -- order of issuing nonbailable warrant of arrest against respondents recalled. 2011(II) MPWN 126 (SC) followed”. 17. In the case of Vishnu Agarwal (supra), the High Court recalled its order dated 2.9.2003. On that day no one appeared on behalf of the Revisionist, though the counsel for respondents appeared. In these circumstances the order was passed. The order was recalled on the ground that in the main list case was not shown and in the computer list it was shown. Therefore, the revisionist had not noted the date, hence, failed to appear. 18. Similarly, in the case of Jitendra Singh (supra), the order of issuance of non bailable warrant against respondent was recalled. For the reasons that the non bailable warrant was issued against respondent at the time of granting of leave to file appeal, whereas, the appeal was not admitted at that time. 19. These judgments do not in any manner support the case of the respondent. For the reasons that the non bailable warrant was issued against respondent at the time of granting of leave to file appeal, whereas, the appeal was not admitted at that time. 19. These judgments do not in any manner support the case of the respondent. 20 Reverted back to the proviso of section 398 of CrPC, it is also clear that a person who has been discharged has a opportunity to explain himself. Without affording any opportunity to the petitioners-accused persons passing of such directions by the revisional Court seems to be erroneous. 21. This view is fortified by the decision rendered in P. Sundarrajan and others v. R. Vidhya Sekar [(2006)1 SCC (Cri) 345] : “Criminal Procedure Code, 1973 -- S.401-- revision -- notice -- Complaint alleging offence punishable under S.420 IPC having been dismissed by Judicial Magistrate, revision petition filed by the complainant before High Court -- High Court without issuing notice to the respondent before it (appellant the Supreme Court) and without considering the defence available to him proceeding to consider the material produced by the revision petitioner and directing the Magistrate to proceed with the complaint in accordance with law-- Held, order unsustainable as it violated principles of natural justice as also requirements of law of hearing a party before passing an adverse order -- natural justice -- audi alteram partem -- show cause/notice -- Opposite party in criminal revision before High Court, held entitled to”. 22. 22. In this regard, reference can also be made to the decision of Hon’ble apex Court in Raghu Raj Singh Rousha v. Shivam Sundaram Promoters Private Limited and Another, reported in (2009)2 SCC 363 , in the Hon’ble apex Court has held that : “Criminal Procedure Code, 1973 – Ss.397 and 401 and Ss.156(3) and 200 – Revisional powers of High Court -- exercise of in absence of accused -- sustainability -- respondent 1, a registered company filing a complaint petition before Metropolitan Magistrate alleging commission of offences purported to be under sections 323, 382, 420, 465, 468, 471, 120B, 506 and 34 IPC accompanied by an application under section 156(3) -- Metropolitan Magistrate refusing to direct investigation in terms of S.156(3) and complainant asked to lead pre-summoning evidence -- however, Hight Court in revision application filed there against wherein only State was impleaded, without hearing accused setting aside siad order and directing Metropolitan Magistrate to examine matter afresh after calling report from police authorities. Held, one of the questions which arises for consideration is as to whether the learned Magistrate has taken cognizance of the offence -- indisputably, if he had taken cognizance of the offence and merely issuance of summons upon the accused persons had been postponed, in a criminal revision filed on behalf of the complainant, the accused was entitled to be heard before the High Court -- S.401(2) refers not only to an accused but also to any person land if he is prejudiced, he is required to be heard -- an order was passed partially in his favour as Metropolitan Magistrate had refused to exercise its jurisdiction under section 156(3) -- had an opportunity of hearing been given to the appellant, he could have shown that no revision application was maintainable and/or even otherwise, no case has been made out for interference with the impugned judgment -- besides, in the instant case learned Magistrate had taken cognizance -- he had applied his mind and refused to exercise his jurisdiction under section 156(3) -- he arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary -- it was only with that intent in view, he directed examination of the complainant and his witnesses -- hence, impugned judgment cannot be sustained and is accordingly set aside -- Penal Code, 1860, Ss.323, 382, 420, 465, 468, 471, 120B 506 and 34. 23. The decision in Manharibhai Muljibhai Kakadia and another v. Shaileshbhai Mohanbhai Patel and others [ (2012)10 SCC 517 ], can be profitably referred, in which the Hon’ble apex Court has held : “Criminal Procedure Code, 1973 -- Ss. 397, 401(2), 203, 200, 202 and 204 -- complaint case -- revision petition filed by complainant against dismissal of complaint under section 203 -- opportunity of hearing to accused suspect, held, is necessary. 397, 401(2), 203, 200, 202 and 204 -- complaint case -- revision petition filed by complainant against dismissal of complaint under section 203 -- opportunity of hearing to accused suspect, held, is necessary. Held, dismissal of complaint under section 203, whether at stage of S.200 itself or after following process contemplated under section 202, culminates in termination of complaint proceedings -- therefore, when complainant files revision petition threagainst before High Court or Sessions Judge, accused/suspect arraigned in complaint gets right of hearing before Revisional Court, as is expressly provided in S.401(2), notwithstanding thatorder impugned in revision was passed without his participation - - however, if revisional Court remands impugned order to Magistrate for fresh consideration, accused/suspect arraigned in complaint would not be entitled to hearing before Magistrate until consideration of matter for issuance of process -- expressions “prejudice”, “other person”, “in his own defence” occurring in S.401(2) -- meaning of -- Penal Code, 1860, Ss.420, 467, 468, 471 and 120B.” 24. In the case of Manharibhai Muljibhai Kakadia and another (supra), in para 46 the Hon’ble apex Court has made it crystal clear that : “The legal position is fairly well-settled that in the proceedings under section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, up to the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding with the complaint and dismisses the complaint under section 203 of the Code, the question is whether a person accused of crime in the complaint against the order of the dismissal of the complaint. Parliament being alive to the legal position that the accused/ suspects are not entitled to be heard at any stage of the proceedings until issuance of process under section 204, yet in section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge of the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence.” 25. In view of the aforesaid discussion, and following the principle of natural justice, the petitioners’ valuable right to defend themselves before the revisional Court was denied to them, therefore, this Court has no hesitation in allowing this application under section 482 of CrPC and setting aside the order dated 22.5.2014 passed in Cr. Revision No.397/2013, the matter is remanded back to the Court of III ASJ, Gwalior to afford the petitioners opportunity of hearing and to pass appropriate order. Both the parties are directed to present themselves before the learned III ASJ, Gwalior on 15.1.2015. 26. A copy of this order be sent to learned III ASJ, Gwalior for compliance. .............