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Madhya Pradesh High Court · body

2018 DIGILAW 893 (MP)

Samta Naidu v. State of M. P.

2018-10-22

C.V.SIRPURKAR

body2018
ORDER 1. This criminal revision filed on behalf of accused persons/petitioners Smt. Samta Naidu and Dilip Naidu is directed against the order dated 12.1.2016 passed by the Court of learned Judicial Magistrate First Class, Jabalpur in Complaint Case No.10738/2013; whereby cognizance has been taken of the offences punishable under sections 420, 467, 468 and 471 of the IPC against petitioners/accused persons Samta and Dilip Naidu. 2. The facts giving rise to this criminal revision may briefly be stated thus: Respondent No. 2 G. Pradeep Naidu is elder brother of petitioner Dilip Naidu. Petitioner No.1 Samta is wife of petitioner No. 2 Dilip. Respondent No. 2 G. Pradeep Naidu had a Joint Account No. 07170100001223 (Old No.6449) in Napier Town, Jabalpur Branch of Bank of Baroda along with his father G. Shankar Naidu and father’s sister Amnibai Naidu. The mode of operation in aforesaid account was “either or survivor”. G. Shankar Naidu expired on 12.12.2001 and Amnibai Naidu expired on 2.7.2004. As such, only respondent No. 2 being sole surviving account holder, was authorized to operate aforesaid bank account. On 20.6.2009, petitioner No. 2 Dilip Naidu filed an application in his handwriting in the Napier Town Branch of Bank of Baroda in the name of late Smt. Amnibai Naidu for getting a cheque book of aforesaid joint account issued. Petitioner No.1 Samta Naidu made forged signatures of Amnibai Naidu on aforesaid application. At the time of making application, the petitioners were fully aware that Amnibai Naidu had already expired on 12.7.2004 because she was their maternal aunt (Bua). On the basis of aforesaid forged application, the petitioners got a cheque book issued in her name on 16.7.2009. Petitioner No. 2 Dilip Naidu signed acknowledgment in the concerned Register of the bank by way of receipt of the cheque book. Petitioner No. 2 Dilip Naidu had also verified the specimen signatures of Amnibai Naidu at the time of opening aforesaid joint bank account by signing the Introduction Form. After obtaining the cheque book illegally in aforesaid manner, the petitioners issued cheque No. 518163 amounting to Rs.1,06,500/- on 17.8.2009 in favour of one Rajesh Pharma. Petitioner No. 1 Samta Naidu forged signatures of Amnibai Naidu on aforesaid cheque as well. Accordingly, a sum of Rs.1,06,500/- was debited from aforesaid joint account and was credited to the account of Rajesh Pharma. Petitioner No. 1 Samta Naidu forged signatures of Amnibai Naidu on aforesaid cheque as well. Accordingly, a sum of Rs.1,06,500/- was debited from aforesaid joint account and was credited to the account of Rajesh Pharma. However, when the cheque was sent for clearing to Bank of Baroda, the Bank Authorities discovered that signatures on the cheque did not match with the specimen signatures of Amnibai Naidu kept in the back record. Therefore, the encashment of cheque was withheld and the amount debited from aforesaid joint account was credited back to the same account. Thus, the petitioners cheated the bank, committed forgery of valuable security and used a forged document as genuine; therefore, respondent No. 2 G. Pradeep Naidu filed a complaint under sections 420, 467, 468, 471 and 120B of the IPC against the petitioners. 3. The trial Court recorded the statements of complainant G. Pradeep Naidu, handwriting expert S. K. Kelkar and Branch Manager of Napier Town Branch of Bank of Baroda Ajay Kumar in support of the complaint and by order dated 5.7.2013 registered the complaint against both the accused persons namely Samta and Dilip Naidu under section 420 of the IPC. 4. Respondent No. 2 G. Pradeep Naidu challenged the aforesaid order in Criminal Revision No. 261/2013 in the Court of learned XII Additional Sessions Judge, Jabalpur, by order dated 9.12.2013, which directed that cognizance of the offence be also taken under sections 467, 468, 471 and 120B of the IPC in addition to section 420 thereof. 5. Order dated 9.12.2013 was challenged by petitioners Samta Naidu and Dilip Naidu before this Court in Criminal Revision No. 2515/2013, where a coordinate bench of this Court by its order dated 12.3.2015, observed that no offence was made out against petitioner No. 1 Samta Naidu. Even against petitioner No. 2 Dilip Naidu only offence of attempt to commit cheating and at the most offence under section 471 of the IPC was made out. However, the Coordinate Bench directed Judicial Magistrate First Class, Jabalpur to consider entire evidence independently and thereafter pass an order relating to registration of criminal complaint against the applicants as per provisions of law without being prejudiced by the observations made either by learned Additional Sessions Judge or by this Court. 6. However, the Coordinate Bench directed Judicial Magistrate First Class, Jabalpur to consider entire evidence independently and thereafter pass an order relating to registration of criminal complaint against the applicants as per provisions of law without being prejudiced by the observations made either by learned Additional Sessions Judge or by this Court. 6. The order dated 12.3.2015 passed by the coordinate bench of this Court was challenged before the Supreme Court by respondent No. 2 G. Pradeep Naidu. By order dated 6.7.2015 passed in petition for Special Leave to Appeal (Cri.) No. 4743/2015, the Supreme Court directed as hereunder : Having heard learned counsel for the petitioner, we are only inclined to state that the learned trial judge, while taking into consideration the materials on record, both oral and documentary, shall also address himself as required under the law the kind of offences that have been made out against the accused persons. Needless to say, the other observations that have been made by the High Court shall not weigh with the learned trial judge. 7. Consequently, learned Judicial Magistrate First Class recorded the statement of complainant witness Anil Kumar on 9.12.2015 in addition to the statements recorded earlier; and by a speaking order dated 12.1.2016 took cognizance of offence punishable under sections 420, 467, 468 and 471 of the IPC against both the petitioners namely Samta Naidu and Dilip Naidu. In the result, both the petitioners are again before this Court invoking its revisionary jurisdiction. 8. It may be noted here that one of the grounds on which the matter was remitted back to the trial Court for a fresh and independent consideration was that learned Additional Sessions Judge as revisionary Court could not have taken cognizance in the case and could not have directed learned Magistrate to register complaint for particular offences. It could only have remitted the matter back so that the concerned Magistrate could have passed appropriate orders. Thus, learned Additional Sessions Judge committed error of jurisdiction in directing learned Magistrate to register the case under sections 467, 468, 471 and 120B of the IPC. 9. However, since then the Supreme Court has held in the case of Rajendra Rajoriya v. Jagat Narain Thapak and another [ 2018(2) JLJ 290 = 2018 CRI LJ1832] Supreme Court as hereunder : 13. 9. However, since then the Supreme Court has held in the case of Rajendra Rajoriya v. Jagat Narain Thapak and another [ 2018(2) JLJ 290 = 2018 CRI LJ1832] Supreme Court as hereunder : 13. The extent of the revisionary powers inter alia, is provided under section 399 read with section 401 of CrPC It is clear from the aforesaid provisions that section 398 has to be read along with other sections which are equally applicable to the revision petitions filed before the Sessions Court. Section 398 only deals with a distinct power to direct further inquiry, whereas section 397 read with section 399 and section 401 confers power on the revisionary authority to examine correctness, legality or propriety of any findings, sentence or order. The powers of the revisionary Court have to be cumulatively understood in consonance with sections 398, 399 and 401 of CrPC. 10. Hence, this Court shall proceed to examine the registration of complaint on merits. S.K. Kelkar, the handwriting expert examined by the complainant has opined that petitioner No.1 Samta Naidu had forged signatures of predeceased Amnibai Naidu on the application for obtaining cheque-book dated 20.6.2009 and on the cheque dated 17.8.2009. His conclusions are based upon two registers supplied to him by the complainant G. Pradeep Naidu. During the course of arguments before this Court, learned counsel for the respondent No. 2 G. Pradeep Naidu has stated that earlier, two brothers lived jointly and when his brother moved out, he found two abandoned Attendance Registers in his house which belonged to petitioner No.1 Samta Naidu. She was a Lecturer in a college and aforesaid registers were filled by her. As such, they contained her standard signatures. However, such bare statement of learned counsel for the respondent No. 2 during the course of arguments in this criminal revision, cannot be accepted without any preparatory ground. A perusal of statement of G. Pradeep Naidu recorded under section 200 of the Code of Criminal reveals that it is absolutely mum in this regard. He makes no mention of the fact that he found any such registers abandoned in his house and that such registers belonged to Samta Naidu. Thus, there is no admissible material on record suggestive of the fact that aforesaid registers belonged to Samta Naidu and they contained her signatures or handwriting. He makes no mention of the fact that he found any such registers abandoned in his house and that such registers belonged to Samta Naidu. Thus, there is no admissible material on record suggestive of the fact that aforesaid registers belonged to Samta Naidu and they contained her signatures or handwriting. Thus, for want of standard handwriting and signatures of petitioner No.1 Samta Naidu, the opinion of handwriting expert S.K. Kelkar becomes worthless and cannot be considered even for the purpose of registration of the offence. There is no allegation in the complaint that Samta Naidu presented the application allegedly containing forged signatures of Amnibai Naidu. There is also no allegation that Samta Naidu handed over or signed allegedly forged cheque issued to Rajesh Pharma. Thus, there is absolutely no relevant material to connect her to the offence even for the purpose of registration of the offence against her. Hence, the complaint deserves to be dismissed so far as petitioner No.1 Samta Naidu is concerned. 11. Coming to the case of petitioner No. 2 Dilip Naidu, there is sufficient material to suggest that he presented a forged application to the bank for obtaining a cheque-book in the name of predeceased Amnibai Naidu. At any rate, he prima facie received such cheque book on behalf of Amnibai Naidu and signed acknowledgment therefor in the concerned Bank Register. He either physically handed over or sent a forged cheque in the sum of Rs.1,06,500/- to Anil Kumar, owner of Rajesh Pharma. Though, the attempt to transfer the amount from aforesaid joint account to the account of Rajesh Pharma ultimately failed due to vigilance of the Bank Officers. There is no doubt that the amount was initially transferred to the account of Rajesh Pharma. As per section 415 of the IPC ‘cheating’ also consists of deceiving any person and fraudulently or dishonestly inducing such person to do or omit to do anything which he would not do or omit if he were not so deceived; and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 12. Since Amnibai Naidu was maternal aunt (Bua) of Dilip Naidu, he ought to have known that she had expired on 2.7.2004. 12. Since Amnibai Naidu was maternal aunt (Bua) of Dilip Naidu, he ought to have known that she had expired on 2.7.2004. In aforesaid view of the matter, there is sufficient ground for proceeding against petitioner No. 2 Dilip Naidu under sections 420, 467, 468, 471 and 120B of the IPC. 13. Consequently, this criminal revision is allowed in part. The complaint is dismissed so far as petitioner No. 1 Samta Naidu is concerned. The order of Court below is affirmed so far as petitioner No. 2 Dilip Naidu is concerned. The trial Court shall proceed with the complaint against petitioner No. 2 Dilip Naidu in accordance with law.