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2014 DIGILAW 1684 (MP)

Ajay Jain v. Ashok Kumar Sehgal

2014-12-18

ALOK VERMA

body2014
ORDER 1. This application under section 482 CrPC is directed against the orders passed by learned 16th Additional Sessions Judge, Indore in Criminal Revision No.646/2013 dated 6.12.2013 and by learned JMFC, Indore in Criminal Case No.14929/2011 dated 18.7.2013. 2. Learned JMFC, Indore by the impugned order, framed the charge under section 407 of IPC against the present applicant, against which, revision was filed before the Sessions Court. The revision was decided by learned 16th ASJ, Indore by the impugned order and dismissed the revision. 3. The facts giving rise to this application are that a private complaint was filed by the respondent against the present applicant and also one Rajesh Mangal under sections 467, 471, 420 and 120B of IPC, but no complaint was filed under section 407 of IPC against the present applicant. However, by the impugned order dated 18.7.2013, the learned Magistrate found no ground for framing charges under sections 467, 471, 420 and 120B of IPC and framed the charge under section 407 of IPC against the present applicant. 4. According to the averments made in the complaint filed by the respondent, he was a manufacturer of plastic pipes. He sent consignment of plastic pipes by three bills in the month of September, 2009. Total value of the consignment was Rs.2,39,190/-. The consignment was handed over to the present applicant for its transportation to Jaipur (Raj.), where the consignment was to be delivered to said Rajesh Mangal, who was the owner of M/s Vinayak. It is alleged in the complaint that the said Rajesh Mangal in connivance with the present applicant made certain changes in the documents. The present applicant did not obtain any receipt for handling over the consignment to Rajesh Mangal and thereby, misappropriated the property as a transporter and therefore, the learned Magistrate framed the charge under section 407 of IPC against the present applicant. 5. In revision, the learned revisional Court, very surprisingly, only laid down the principles, which apply at the stage of framing of charges. He did not apply his mind on the facts of the case and passed the impugned order stating therein that no infirmity was found in the order passed by learned Magistrate. 5. In revision, the learned revisional Court, very surprisingly, only laid down the principles, which apply at the stage of framing of charges. He did not apply his mind on the facts of the case and passed the impugned order stating therein that no infirmity was found in the order passed by learned Magistrate. Aggrieved by both of these orders, the present application is filed on the ground that no complaint was filed under section 407 of IPC and still, charge was framed under section 407 of IPC, which pertains to criminal breach of trust by carrier etc. In the complaint itself, the complainant admits that though no receipt was obtained by the present applicant, the consignment was handed over to the consignee Rajesh Mangal. However, without taking this fact ino consideration, it was prima facie, accepted against the present applicant that he did not hand over the consignment to Rajesh Mangal and in this premise, the charge was framed. 6. In this case, reply was filed by the respondent and also he filed certain copies of the proceedings before the learned Magistrate. From going through the certified copies of the proceedings, it is clear that on 20.7.2011, the complaint was filed. The learned Magistrate recorded the statements of witnesses under section 200 of CrPC and thereafter, passed by order, in which, cognizance under section 407 of IPC was taken only against the present applicant and no cognizance was taken against proposed accused No.1 Rajesh Mangal, because according to learned Magistrate, prima-facie it was found that the said Rajesh Mangal did not receive the consignment and the goods were misappropriated by the present applicant and, accordingly, he took cognizance only against the present applicant and that was under section 407 of IPC. After appearance of the present applicant, charge under section 407 of IPC was framed by the impugned order dated 18.7.2013. 7. Arguments of learned counsel for the applicant is that the Court recorded the evidence before charge. On 13.8.2012, the complainant was examined, however, the complainant did not state anything against him and therefore, he was not cross-examined by the present applicant. The second witness was rickshaw driver, who transported the consignment locally from the office of the respondent and handed over the consignment to the present applicant. On 13.8.2012, the complainant was examined, however, the complainant did not state anything against him and therefore, he was not cross-examined by the present applicant. The second witness was rickshaw driver, who transported the consignment locally from the office of the respondent and handed over the consignment to the present applicant. He further argues that in the complaint itself, it was admitted by the respondent that the present applicant handed over the consignment to Rajesh Mangal and therefore, only allegation against him was that he did not obtain receipt from Rajesh Mangal in respect of receipt of the goods by him. 8. However, after going through the certified copies filed by the respondent, it is clear that learned Magistrate applied his mind fully on 20.7.2011 and on this stage itself, he took into consideration the averments in the complaint that the goods were handed over to Rajesh Mangal. However, he observed that no receipt was filed by the present applicant who was under duty to obtain receipts from the consignee, and therefore, it prima facie appeared to him that the goods were misappropriated by the present applicant as transporter and therefore, the complaint was registered under section 407 of IPC against the present applicant. 9. In this back ground, only evidence before charge was recorded by the Magistrate and therefore, he did not choose to cross the respondent who had specifically stated that when he inquired from Rajesh Mangal, whether he received the goods or not, he denied and therefore, he asked for receipts from the present applicant, who said that the goods were delivered to Rajesh Mangal and therefore, no receipt is required. In this situation of recording evidence before charge and after affording an opportunity to the present applicant to cross-examine, no change in factual position occurred. That being so, framing of charge by the Magistrate cannot be termed as illegal or irregular and in my opinion, the Magistrate committed no irregularity or error in framing the charge under section 407 of IPC. Argument of the learned counsel that when no complaint was filed under section 407 of IPC, cognizance cannot be taken by the Magistrate cannot be accepted. Argument of the learned counsel that when no complaint was filed under section 407 of IPC, cognizance cannot be taken by the Magistrate cannot be accepted. I find no force in this argument, as applying his brain fully on the facts of the case as stated in the complaint as well as the statements recorded under section 200 of CrPC, learned Magistrate rightly registered the case under section 407 of IPC. The present applicant was summoned and he never challenged the cognizance taken by the Magistrate before any Court and as such, the order passed by learned Magistrate dated 20.7.2011 attained finality and therefore, after recording of evidence, no new fact emerges as the complainant was not cross-examined by the present applicant. In such a situation, framing of charge under section 407 of IPC cannot be called illegal irregular or improper. 10. In such situation, I find that no ground is made out for any interference using extra-ordinary power granted to this Court under section 482 CrPC. Present application being devoid of merit is liable to be dismissed. Accordingly, the same is dismissed. V. K. Jain for applicant; A. K. Jain for respondent.