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2016 DIGILAW 502 (MP)

Kailash v. Rajendra

2016-06-23

VED PRAKASH SHARMA

body2016
ORDER 1. This petition under section 482, CrPC has been preferred against the order dated 18.12.2015 passed by learned Additional Sessions Judge, Indore in Criminal Revision No.874/2015, whereby Criminal Complaint Case No.6477/2011 and another complaint case (unregistered) between the same parties have been directed to be tried as cross-cases. 2. Brief genesis of this petition is that a complaint under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') regarding dishonour of two cheques was preferred by the petitioner against the respondent which came to be registered as Criminal Case No.6477/2011. This case is at the final stage of hearing as reflected from para 11 of the impugned order. The respondent herein, also filed a criminal complaint in 2013 against the present petitioner regarding aforesaid two cheques, for offences under sections 420, 468 and 471, IPC alleging that the same have been fraudulently prepared by the petitioner to blackmail the respondent in the case under section 138 (Criminal Complaint Case No.6477/2011) filed by the petitioner. 3. A prayer was made by the respondent before the learned Magistrate that both the cases, one filed by the petitioner under section 138 of 'the Act', in the year 2011, which is at the final stage, and another one filed by the respondent for offences under sections 420, 468 and 471, IPC in the year 2013, which is yet to be registered, be tried together, treating them as cross-cases. 4. The learned Magistrate declined to accept the prayer made by the respondent. Feeling aggrieved, the respondent preferred Criminal Revision No.874/2015, wherein, by the impugned order, the learned Additional Sessions Judge has directed hearing of both the cases as cross-cases. 5. Learned counsel for the petitioner has challenged the impugned order on the ground that all the pleas, raised by the respondent, in his criminal complaint, can well be taken by way of defence in the criminal case filed by the petitioner under section 138 of 'the Act'. It is submitted that subsequent complaint has been filed only to hamper the progress of the complaint case filed by the petitioner under section 138 of 'the Act' in the year 2011, which is almost at the final stage. 6. It is submitted that subsequent complaint has been filed only to hamper the progress of the complaint case filed by the petitioner under section 138 of 'the Act' in the year 2011, which is almost at the final stage. 6. As opposed to this, the learned counsel for the respondent has submitted that both the cases have arisen from the dispute relating to same cheques and the issues in both the cases are common, therefore, if the cases are not heard together, the respondent will stand seriously prejudiced because the pleas raised by him in the subsequent complaint then shall be rendered redundant. 7. Heard the learned counsel for the parties and perused the impugned order. 8. As per the law, a complaint under section 138 of 'the Act' has to be preceded by a demand notice as contemplated in Proviso (b) of section 138 of 'the Act'. 9. Learned counsel for the respondent has fairly admitted that the demand notice with regard to the two disputed cheques was received by the respondent and a reply to the same was also made. It is quite surprising that even after coming to know about the alleged misuse of the cheques in the year 2011, the respondent remained idle for almost two years. It is only after the case registered under section 138 of 'the Act' has reached at the final stage that he filed complaint for offences under sections 420, 468 and 471, IPC against the petitioner regarding the same cheques. 10. From the aforesaid, it can well be gathered that in the subsequent complaint, the respondent has raised issues which he was at liberty to raise in the criminal complaint case filed by the petitioner under section 138 of 'the Act'. If the pleas, so raised, by the respondent are accepted by the trial Court, then definitely that will pave way for further proceedings to be pursued in the complaint, filed by the respondent for offences under sections 420, 468 and 471, IPC. Clubbing of these two cases together and trying them as cross-cases, will definitely hamper the progress of the complaint cases, filed by the petitioner in 2011, which is almost at the final stage. Clubbing of these two cases together and trying them as cross-cases, will definitely hamper the progress of the complaint cases, filed by the petitioner in 2011, which is almost at the final stage. The two cases, in the considered opinion of this Court, by any stretch of imagination or application of logic cannot be treated as cross-cases because the plea raised by the respondent regarding alleged forgery of the cheques, was throughout available to him in the Criminal Complaint Case, filed under section 138 of 'the Act, Therefore, the dictum of law laid down by the apex Court in Nathilal v. State of Uttar Pradesh, reported in 1990 (Supp. SCC) 145, which has been relied upon by the revisional Court, is not applicable in the instant case. 11. In view of the aforesaid, the impugned order cannot be sustained. “Accordingly this petition is hereby allowed and the impugned order passed in S.T.No.874/2015 stands quashed. Sushil Sharma for petitioner; Jagdish Dangi for respondent.