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2016 DIGILAW 492 (MP)

Mudulkumar Jain v. State Bank of Indore

2016-06-22

SHEEL NAGU

body2016
ORDER : Sheel Nagu, J. 1. The inherent powers of this court u/S. 482 of Cr.P.C are invoked for quashment of the revisional order dated 27.8.2015 passed by First Additional Judge to Second Additional Judge, Gwalior whereby the order passed by the JMFC, Gwalior dated 13.7.2015 dismissing an application preferred by the petitioner raising certain preliminary objection that no offence u/S. 138 Negotiable Instrument Act (for brevity 'NI Act') is made out, was rejected. 2. Learned counsel for the rival parties are heard. 3. It is seen from the record that the petitioner was unsuccessful before Revisional Court. He has invoked inherent powers of the court which ostensibly appears to be a camouflaged second revision which is barred u/S. 397 (3) of Cr.P.C. despite the said bar the inherent powers of this court can very well be exercised if it is found that gross injustice is made out for which this court would like to go into factual matrix. 4. The factual matrix attending the instant case is that in a criminal prosecution launched against the petitioner u/S. 138 of NI Act, the evidence of the complainant was over and it was for the petitioner accused to adduce his evidence. At that stage an application was preferred by the petitioner accused raising certain objections which according to the petitioner accused went to the root of the matter in as much as no offence u/S. 138 of NI Act is made out and therefore request was made in the said application for dropping of the prosecution. This application has been rejected by order dated 13.7.2015 by the trial court interalia holding that it is too late in the day to raise and consider this kind of objection. The trial court further held that the stage for making such objection was the stage of framing of charge and not thereafter when adducing of evidence has commenced. 5. Aggrieved, the petitioner approached revisional court unsuccessfully. Thereafter the petitioner has visited this court by invoking inherent powers. 6. The findings recorded by the trial court do not appear to be unlawful or occasioning any failure of justice. 5. Aggrieved, the petitioner approached revisional court unsuccessfully. Thereafter the petitioner has visited this court by invoking inherent powers. 6. The findings recorded by the trial court do not appear to be unlawful or occasioning any failure of justice. The trial court was right in recording the finding that when criminal prosecution is commenced, the objection regarding the offence being not made out should be raised at the time when arguments are extended on the issue of framing of charge and not at any subsequent stage when adducing of evidence is underway. Admittedly in the present case, the prosecution had concluded it's evidence and it was accused who was to commence his evidence in defence. If the accused/petitioner was aggrieved he could have assailed the order of framing of charge which was not done. It is necessary to observe herein that even thereafter for raising such objection about offence not being made out, the accused is not remedy-less as the doors of the High Court in it's inherent powers are always open where any criminal prosecution can be challenged at any stage 7. In the instant case, the challenge is basically of the rejection of the application by the trial court by order dated 13.7.2015. The trial court was right in it's approach not to enter into the question as to whether the offence is prima facie made out or not at the advanced stage of adducing of evidence. 8. Moreso this court cannot go into the merits of the allegations since the limited challenge in the present petition is of the order of the trial court dated 13.7.2015 belatedly rejecting the said application. 9. This court does not find any illegality, impropriety or material irregularity in the order passed by the trial court dated 13.7.2015 which was rightly upheld by the revisional court. 10. The present petition u/S. 482 of Cr.P.C appears to be a camouflaged second revision which is barred under the provision of Section 397 (2) of Cr.P.C. 11. There is no failure of justice which is occasioned and therefore no case for invoking inherent powers is made out. 12. Consequently, this petition fails and is hereby dismissed sans cost.