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2019 DIGILAW 140 (MP)

Dilip Naidu v. State of M. P.

2019-02-12

C.V.SIRPURKAR

body2019
ORDER 1. Since both of aforesaid criminal revisions have arisen from the same crime, they have been heard analogously and are being disposed of this common order. 2. Criminal Revision No. 2996/2015 filed on behalf of accused persons/petitioners Dilip Naidu and Smt. Samta Naidu is directed against the order dated 2nd November, 2015 passed by the Court of learned IX Additional Sessions Judge, Jabalpur in Criminal Revision No. 288/2014; whereby, the order dated 2.8.2014 passed by the Court of learned Judicial Magistrate, First Class, Jabalpur in Criminal Case No. 9226/2014 was set aside and in addition to registration of complaint under section 420 of the Indian Penal Code, learned Magistrate was directed to reconsider the matter in order to see whether the offences under sections 467, 468, 471, 409 and 120B of the Indian Penal Code are made out against the petitioners/accused persons Dilip and Samta Naidu. 3. Criminal Revision No. 2556/2016 also filed by accused persons/petitioners Dilip and Samta Naidu is directed against the order dated 20.9.2016 passed by the Court of learned X Additional Sessions Judge, Jabalpur in Sessions Trial No. 337/2016, whereby a charge under sections 120B, 420, 467, 468 and 471 was directed to be framed against petitioners Samta and Dilip Naidu. 4. The facts giving rise to aforesaid criminal revisions may be summarized as hereunder: Petitioner Samta is wife of petitioner Dilip Naidu. Respondent No. 2 G. Pradeep Naidu is brother of petitioner Dilip Naidu. Disputes with regard to joint family properties are going on between the parties. Shri G. Shankar Naidu, father of Dilip and Pradeep Naidu, had purchased a Maruti 800 Car in the year 1995 bearing Registration No. MP-20-F-2919. Aforesaid car was used by Samta and Dilip Naidu and G. Shankar Naidu. G. Shankar Rao Naidu expired on 12.12.2001. After his death, the car became joint property of Pradeep, Dilip and their sister; however, Dilip and Samta misrepresented to Maruti Standard Auto Agency, Jabalpur that aforesaid car belonged to them. They submitted forged affidavits and forged documents in the name of G. Shankar Naidu in the year 2009; whereas, they were fully aware that G. Shankar Naidu had expired in the year 2001 itself. In aforesaid manner, and in furtherance of a conspiracy, they got a Credit-Note in the sum of Rs. 37,500/- executed by Standard Auto Agency in the name of Samta Naidu. In aforesaid manner, and in furtherance of a conspiracy, they got a Credit-Note in the sum of Rs. 37,500/- executed by Standard Auto Agency in the name of Samta Naidu. Later, aforesaid vehicle was purchased by one Manoj Vishwakarma and at present is registered in his name. The said amount of Rs. 37,500/- was adjusted towards the purchase of a new car by the accused persons in the name of Samta Naidu from Standard Auto Agency. 5. G. Pradeep Naidu, elder brother of Dilip Naidu, filed a complaint in the Court of learned Judicial Magistrate First Class, Jabalpur on 14.8.2012 alleging some of the aforesaid facts. The complaint was dismissed by learned Judicial Magistrate First Class under section 203 of the Code of Criminal Procedure by order dated 5.7.2013. G. Pradeep Naidu challenged the order dated 5.7.2013 before learned VIII Additional Sessions Judge, Jabalpur in Criminal Revision No. 332/2013. On 5.3.2014, G. Pradeep Naidu submitted before learned VIII Additional Sessions Judge that certain new facts had come to his notice. He had also obtained certain documents in support of the complaint; therefore, he prayed for withdrawal of the complaint with leave to file another complaint in the same matter. Learned Additional Sessions Judge observing that a second complaint can be filed on new facts at any time and for that purpose no leave of the Court is necessary, dismissed the complaint by order dated 5.3.2014. 6. Subsequently, complainant G. Pradeep Naidu filed another complaint on 22.4.2014 in respect of the same offence providing additional particulars. This complaint was registered by learned Judicial Magistrate First Class by order dated 2.8.2014 under section 420 of the Indian Penal Code; however, learned Magistrate declined to take cognizance of the offence punishable under section 201, 409, 467, 468 and 471 of the Indian Penal Code on the ground that the original documents allegedly forged by Samta and Dilip Naidu had not been filed along with the complaint. 7. Complainant G. Pradeep Naidu challenged order dated 2.8.2014 before the learned IX Additional Sessions Judge, Jabalpur in Criminal Revision No. 288/2014. Learned IX Additional Sessions Judge by his order dated 2nd November, 2015 directed learned Judicial Magistrate First Class to reconsider the documents available on record and pass appropriate orders for taking cognizance of appropriate offences. 7. Complainant G. Pradeep Naidu challenged order dated 2.8.2014 before the learned IX Additional Sessions Judge, Jabalpur in Criminal Revision No. 288/2014. Learned IX Additional Sessions Judge by his order dated 2nd November, 2015 directed learned Judicial Magistrate First Class to reconsider the documents available on record and pass appropriate orders for taking cognizance of appropriate offences. Subsequently, learned Judicial Magistrate First Class took cognizance of all offences under which the complaint was filed and committed the matter for trial to the Court of Sessions. Learned X Additional Sessions Judge by order dated 20.9.2016 framed a charge against accused persons Dilip and Samta Naidu under sections 120-B, 420, 467, 468 and 471 of the Indian Penal Code. The order of learned IX Additional Sessions Judge, Jabalpur, dated 2nd November, 2015 remitting the matter back to the Judicial Magistrate First Class for reconsideration and order dated 20.9.2016 passed by learned X Additional Sessions Judge, Jabalpur in Sessions Trial No. 337/2016 framing the charge as aforesaid, are subject matters of challenge in these two criminal revisions. 8. Though, several grounds are taken by learned counsel for petitioners/accused persons Dilip and Samta Naidu in the memoranda of revision petitions, during the course of arguments, he laid emphasis mainly on the ground that the first complaint had been dismissed by learned Judicial Magistrate First Class under section 203 of the Code of Criminal Procedure by order dated 5.7.2013. The revision petition filed against aforesaid order had been dismissed as withdrawn by learned VIII Additional Sessions Judge, Jabalpur by order dated 5.3.2014 passed in Criminal Revision No. 332/2013; therefore, this second complaint on the same facts would lie only on certain limited grounds and those grounds are not available to the complainant; therefore, this second complaint is liable to be dismissed on this ground alone. In support of aforesaid contention, learned counsel for the petitioners has invited attention of the Court to an order passed by this bench dated 11.9.2017 in Criminal Revision No. 2069/2016 in the case of R. K. Tandia and two others v. Murlidhar Soni and four others, wherein this bench placing reliance upon the judgment rendered by the Supreme Court in the case of Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 , had elucidated the circumstances wherein a second complaint in respect of the same offence is maintainable. 9. 9. Learned counsel for the respondent/complainant has supported both of the impugned orders contending that the conditions for second complaint in same offence exist in the present case. 10. On perusal of the record and due consideration of the rival contentions, this Court is of the view that the second complaint in respect of the same offence is maintainable in the present case; therefore, both of aforesaid two criminal revisions must fail for the reasons hereinafter stated. 11. This Court had held in the case of R. K. Tandia (supra) as follows: A Full Bench of the Supreme Court in the case of Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 has held as follows : An order of dismissal under S. 203, Criminal Procedure Code, is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circum-stances, e.g., (1) where the previous order was passed on an incomplete record or (2) on a misunderstanding of the nature of the complaint or (3) it was manifestly absurd, unjust or foolish or (4) where new facts which could not with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. 12. The same view has been reiterated by the Supreme Court in the cases of Mahesh Chand v. B. Janardhan Reddy and another, AIR 2003 SC 702 and Poonam Chand Jain and anr. v. Fazru, AIR 2005 SC 38 . Thus, though, an order of dismissal under section 203 of the Code of Criminal Procedure is no bar to entertainment of a second complaint on the same set of facts, but it can be entertained only in exceptional circumstances as mentioned above. In the instant case, there is nothing to suggest that earlier order of dismissal under section 203 of the Code of Criminal Procedure was passed on an incomplete record or on a misunderstanding of the nature of the complaint. It was a speaking order on merits giving cogent reasons. Thus, it cannot be said to be manifestly absurd, unjust or foolish. It was a speaking order on merits giving cogent reasons. Thus, it cannot be said to be manifestly absurd, unjust or foolish. This is not a case of the complainant that the second complaint has been brought on additional facts, which could not be brought on record in the previous proceedings, in spite of reasonable diligence. Thus, no exceptional circumstances exist in the present case. Since, the earlier order was passed upon full consideration of complainant's case, no opportunity can be granted to the complainant to have his complaint inquired into a second time. In fact it was not brought to the notice of learned Judicial Magistrate First Class at the time of passing the impugned order that the earlier complaint on same set of facts has been considered on merits and dismissed under section 203 of the Code of Criminal Procedure by the same Court. Thus, it is obvious that this second complaint is not maintainable. 13. However, in the context of the instant case, when we compare the two complaints, it is obvious that at the time of filing the first complaint, the complainant seems to be aware only of the fact that accused persons Dilip and Samta had unilaterally sold a car belonging to G. Shankar Naidu and which, after his death, had become joint family property. The complainant seems to have acquired the knowledge of details of the transaction later. Therefore, subsequent complaint provides the particulars of the transaction in far greater details: for example, in the first complaint it has been alleged that Samta Naidu had sold the car by forging signatures of G. Shankar Naidu in Forms No. 29 and 30; whereas, in the second complaint it has been alleged that the car had been transferred through Maruti Standard Auto Agency, a credit note was executed by the Agency in favour of Samta in the sum of Rs. 37,500/-, the car had been subsequently sold to one Manoj Kumar through Standard Auto Agency and the proceeds of the car were adjusted towards purchase of a new car from Standard Auto Agency in the name of Samta Naidu. Thus, the previous order dated 5.7.2013 in the first complaint had been passed by learned Judicial Magistrate First Class on an incomplete record. Thus, the previous order dated 5.7.2013 in the first complaint had been passed by learned Judicial Magistrate First Class on an incomplete record. As such, the matter would fall under the first of the four categories to orders enumerated in the judgment of Pramatha Nath Taluqdar (supra) making second complaint in respect of the same offence, maintainable. Moreover, it may be noted that order dated 5.7.2013 is an extremely cryptic order. It provides no reasons whatsoever, for dismissal of the complaint under section 203 of the Code of Criminal Procedure. A four Judge bench of the Supreme Court in the case of Chandra Deo Singh v. Prokash Chandra Bose and anr, AIR 1963 SC 1430 , had held that where the Magistrate had dismissed the complaint without giving reasons as required by section 203 of the Code of Criminal Procedure, the error is of a kind which goes to the root of the matter. It is possible to say that giving of reasons is a pre-requisite for making an order of dismissal of a complaint under section 203 of the Code of Criminal Procedure and absence of reasons would make the order a nullity. Thus, the order dated 5.7.2013 was a nullity. In these circumstances, the second complaint in respect of the same offence would be maintainable. 14. Coming to the order dated 2nd November, 2015 passed by learned IX Additional Sessions Judge, Jabalpur in Criminal Revision No. 288/2014, it may be noted that learned Additional Sessions Judge has placed reliance upon the principles enunciated by the Supreme Court in the cases of Mohinder Singh v. Gulwant Singh, AIR 1992 SC 1894 , Vinod Raghuvanshi v. Ajay Arora and others, 2014 (1) JLJ 404 =2014 (III) MPJR (SC) 158 and Sonu Gupta v. Deepak Gupta, 2015 (III) MPJR (SC) 1 and has held that insistence of learned Judicial Magistrate First Class on filing original documents, which were alleged to have been forged, was improper. In the light of aforesaid pronouncements, this Court finds no infirmity in the approach adopted by learned Additional Sessions Judge warranting interference by this Court under its revisionary jurisdiction. 15. Consequently, this Court is of the view that both revisions petitions are without merit and deserves to be dismissed. 16. Consequently, both Criminal Revisions are dismissed and the impugned orders are affirmed.