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2014 DIGILAW 895 (RAJ)

Hamraj Dhangi v. State of Rajasthan

2014-04-10

VIJAY BISHNOI

body2014
JUDGMENT 1. - This Criminal Misc. Petition has been filed by the petitioner against the order dated 1.10.2013 passed by the Additional District and Sessions Judge, Udaipur (hereinafter referred to 'as the Revisional Court) in Criminal Revision Petition No. 39/2012 whereby the revision petition filed by the petitioner against the order dated 1.11.2011 passed by the Judicial Magistrate First Class No. 1 (North), Udaipur (hereinafter referred to as 'the Trial Court'), has been dismissed. The petitioner has also challenged the order dated 1.11.2011 passed by the Judicial Magistrate, First Class No. 1 (North), Udaipur in Criminal Regular Case No. 930/2011 whereby the learned Trial Court has taken cognizance against the petitioner for the offence under Section 138 Negotiable Instruments Act and summoned him to face trial. 2. The learned Counsel for the petitioner has submitted that the petitioner has already returned the amount taken from the complainant, however, the cheque in question given by him to the complainant as security has not been returned by the complainant and later on he submitted those cheques for realisation before the bank and when the same was dishonoured, he has filed the complaint and the Trial Court took cognizance against the petitioner for the offence punishable under Section 138 Negotiable Instruments Act. The learned Counsel for the petitioner has argued that the complaint filed by the complainant against the petitioner is false and the Trial Court has grossly erred in taking cognizance against him on the said complaint. The learned Counsel for the petitioner has further argued that the Revisional Court has not taken into consideration the grounds raised by the petitioner and has confirmed the order passed by the learned Trial Court in mechanical manner. It is prayed that the orders passed by the Trial Court as well as the Revisional Court are liable to be quashed and set aside. 3. Heard learned Counsel for the petitioner and perused the impugned orders. 4. The learned Revisional Court has observed in the impugned order that the revision petition filed by the petitioner is barred by limitation and the plea of the date of knowledge taken by the petitioner is not tenable solely on the ground that earlier to this revision petition, the petitioner has approached Revisional Court while challenging the order passed by the Trial Court on 23.3.2012, whereby the petitioner was summoned through arrest warrant. The Revisional Court has also observed that the order of taking cognizance dated 1.11.2011 was passed much earlier to the order dated 23.3.2012, hence, the story put forward by the petitioner about the date of knowledge of the order of taking cognizance by Trial Court is liable to be discarded. On merits, the learned Revisional Court has held that issue whether the cheque in question was security cheque or a cheque against consideration is an issue to be decided after trial wherein the petitioner would have ample opportunity to prove his defence. The learned Trial Court has further observed that the case set up by the petitioner that the complainant has made same writing on the back of the cheque about receiving payment cannot be termed conclusive proof regarding the innocence of the petitioner. 5. After going through the impugned orders passed by the Trial Court as well as the Revisional Court, this Court does not find any illegality in the same as the' Revisional Court has rightly observed that whether the cheque in question was security cheque or was a cheque against consideration is the issue to be decided by the Trial Court after considering the defence of the petitioner. 6. Both the Courts below have passed the impugned orders perfectly in accordance with law and, therefore, are not liable to be interfered with. Apart from this, the petitioner has filed this petition under Section 482 Cr.P.C. but in act it is second revision which is clearly barred in view of provisions of Section 397(3) Cr.P.C.In such circumstances, this Court does not find any force in this Criminal Misc. Petition. The same is hereby dismissed. The stay petition is also dismissed.Petition dismissed. *******