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2018 DIGILAW 162 (JK)

Om Parkash Bali v. State of J&K

2018-03-16

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. This petition under section 561-A Cr.P.C. filed by one of the accused seeks quashing of order dated 05.02.2009, whereby and where under learned trial court in the trial arising in FIR No. 50/2004 of Police Station, Crime Branch, Jammu framed charges under sections 120-B, 419, 420, 467, 468 and 471/109 RPC against the petitioner and the other co-accused and order dated 04.11.2009, whereby learned trial court called record of criminal complaint, titled, Om Parkash Bali v. Kusum Sharma from the court of the Railway Magistrate, Jammu. 2. Heard. I have perused the record. 3. Facts as they are relevant for disposal of this petition, precisely, are that respondent No. 2, Kusum Sharma, received a notice under section 138 of the Negotiable Instruments Act (for short the NI Act) on behalf of the petitioner in respect of cheque No. 548282 dated 06.02.2004 valuing ten lakh rupees said to have been issued by her. On receiving this notice respondent No. 2 lodged a complaint to the Senior Superintendent of Police, Crime Branch, Jammu on 13.02.2004 alleging inter alia that she has been defrauded by the petitioner and the co-accused by opening a bank account in her name by forging her signature. Pursuant to and on the basis of the said complaint, Crime Branch after preliminary inquiry, registered FIR No. 50/2004 and after investigation found that bank account No. 6875 was fraudulently opened by the petitioner and the co-accused in the name of respondent No. 2 in furtherance a criminal conspiracy hatched by them and the cheque valuing ten lakh rupees was also prepared fraudulently by forging her signature and filed charge-sheet against the petitioner and the co-accused. Learned trial court after finding a prima facie case framed the charges against the petitioner and the co-accused. 4. On the other hand, pursuant to and consequent upon non compliance with the notice dated 09.02.2004 (supra) by respondent No. 2, the petitioner filed a complaint under Section 138 of the NI Act against her. Learned Magistrate in that case issued process against respondent No. 2 for proceeding against her for commission of offence under Section 138 of the NI Act. Learned Magistrate in that case issued process against respondent No. 2 for proceeding against her for commission of offence under Section 138 of the NI Act. After charges against the petitioner and the co-accused in the charge-sheet filed by the Crime Branch were framed, the respondent No. 2, who is PW-1 in the charge-sheet, filed an application before that court through Special Public Prosecutor seeking calling of the record of the complaint from the court of the Magistrate. Learned trial court vide order dated 04.11.2009 ordered calling of the record of the complaint. 5. Quashing of impugned orders is sought primarily on the ground that the cheque, which is alleged to have been forged, has been tendered as evidence by the petitioner in the complaint under Section 138 of the NI Act filed by him against respondent No. 2 so launching of prosecution for forgery and framing charges in respect of the same cheque is illegal as it is hit by section 476 Cr.P.C. and prosecution can be launched only in terms of section 195 (1) Cr.P.C. after conclusion of the trial in the complaint. 6. Learned counsel for the petitioner argued that issue relating to the genuineness of the cheque issued by respondent No. 2 is sub judice in the complaint filed by the petitioner so parallel trial involving question of forgery of the said cheque is not permissible. Per contra, learned Sr. AAG supported both the impugned orders and submitted that the trial in the charge-sheet filed by the Crime Branch has to prevail as forgery of the cheque can be proved or disproved in that trial alone. 7. Indisputable position emerging in the aforementioned factual scenario is that the subject matter of the prosecution in the complaint filed by the petitioner under Section 138 of the NI Act, entirely and that in the charge-sheet filed by the Crime Branch, partially, is the same. It can be said that there are two cross cases in regard to cheque No. 548282 dated 06.02.2004 valuing ten lakh rupees said to have been issued by respondent No. 2 in favour of the petitioner in discharge of a legal liability towards him, one filed by the petitioner and the other filed by the Crime Branch on a report lodged by respondent No. 2. Common question involved is whether the said cheque was actually issued by the respondent No. 2 or has been forged by the petitioner and the other co-accused after opening a fraudulent bank account in the name of respondent No. 2 in furtherance of a criminal conspiracy hatched by them. 8. Legal position in regard to trial of cross criminal cases is well settled. The cross cases are required to be tried by the same court individually but simultaneously and to be disposed of simultaneously by individual judgments. Difficulty indeed arises when one of the two cases is exclusively triable by the Court of Session and is committed for trial to a Sessions Judge in the normal course under section 205-D Cr.P.C. whereas the other is not exclusively triable by the Court of Session and cannot be so committed. Such eventuality, however, can be met with by having recourse to section 347 Cr.P.C. which empowers a Magistrate trying a case to commit that case for trial to a Court of Session even if the offence is not exclusively triable by the Court of Session. There is no provision for staying trial in one of the cross cases, pending and awaiting decision in the other. 9. In regard to the cheque in question parties have lodged counter allegations, one saying that the cheque has been issued by the other and the other saying that the cheque has been forged by the former. One of them, that is, the petitioner is not correct in saying that charges against him and the co-accused should not have been framed because of pendency of the trial in the complaint filed by him nor it would be correct to say that since the cheque in question has been tendered as evidence by him so prosecution against him and the co-accused on the basis of said cheque can be launched only in terms of section 195 Cr.P.C. read with section 476 Cr.P.C. Learned trial court, therefore, has not committed any error in framing charges against the petitioner and the co-accused and in that order dated 05.02.2009 does not deserve any indulgence, much less interference, by this Court. 10. 10. Having stated the legal position in regard to trial of cross-cases, I, however, am unable to uphold the order dated 04.11.2009, whereby learned trial court has ordered calling of the record of the complaint under section 138 of the NI Act filed by the petitioner and cannot but say the order suffers from total non application of mind by the learned trial judge inasmuch as order to this extent has been passed without stating as to why and under what provision the record is being called. Calling of the record has been ordered on the basis of the application filed by respondent No. 2, who is accused in the complaint. The calling of the record was sought by respondent No. 2 on the ground that since charges against petitioner (complainant in the complaint) and the co-accused have been framed so continuation of the complaint case would “tantamount to gross injustice that must be avoided in the interest of law and justice”. 11. Legal position having been explained above, learned trial court should not have ordered for calling the record of the complaint resulting into the stay or postponement of trial therein. Contextually, it has been noticed that in the complaint respondent No. 2 (therein accused) had earlier filed an application for dropping of the proceedings on the basis of the lodging of FIR by her with the Crime Branch, which, however, was dismissed by the learned Magistrate. This was followed by filing of application by her for postponement of the trial in the complaint pending disposal of the charge-sheet filed by the Crime Branch. Respondent No. 2, however, succeeded in her design to stall the trial in the complaint with calling of the record by the trial court in the charge-sheet before application for postponement of trial in the complaint was decided by the learned Magistrate. 12. For all that said and discussed above, this petition to the extent it seeks quashing of order dated 05.02.2009 is dismissed and is allowed to the extent it seeks quashing of order dated 04.11.2009, which is quashed. 13. Learned trial court shall immediately send the record of the complaint back to the court of the Magistrate trying the same. 12. For all that said and discussed above, this petition to the extent it seeks quashing of order dated 05.02.2009 is dismissed and is allowed to the extent it seeks quashing of order dated 04.11.2009, which is quashed. 13. Learned trial court shall immediately send the record of the complaint back to the court of the Magistrate trying the same. It shall, however, remain open for the learned Magistrate to accord consideration to committal of the complaint case to the court of learned 1st Additional Sessions Judge, Jammu for simultaneous trial with the charge-sheet filed by the Crime Branch, suo moto or an application that may be filed by either of the parties. 14. Record of the trial court be sent back along with a copy of this order. 15. Disposed of.