Bombay High Court
Ajay vs Unknown on 21 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL REVISION APPLICATION NO. 36/ 2011
1) Ajay s/o Ramesh Bhute
Aged about 38 years
occu: Business
2) Ramesh s/o Sadashiv Bhute
Aged about 70 years, occu:Pensioner
Both are R/o Near Arvi Stand
Wardha Tq.& Dist. Wardha. .. ..APPLICANTS
v e r s u s
1) M/s Jai Matadi Electronics
Through Its Prop. Bharat R. Kungar
occu: Business R/o Near Dhantoli Square
Wardha, Tq.& Dist. Wardha.
2) The State of Maharashtra ..... NON-APPLICANTS
RESPONDENTS
............................................................................................................................
Mr. F T Mirza, Advocate for the applicants
Mr. J R Kidiley, Adv.for Respondent no.1
Mr. A.S. Sonare, APP for Respondent No.2
.......................................................................................................................
CORAM: A.P.BHANGALE , J.
DATED : 21 November, 2011
st
ORAL JUDGMENT :
By consent of respective counsel, the matter is taken up for final
hearing.
2. By this Revision Application, the revision -applicants pray for
quashing and setting aside the impugned judgment and order dated
29.11.2010 passed by the learned Sessions Judge, Wardha in Criminal
Revision No.85/2010 whereby the learned Judge directed the trial Magistrate
to appreciate the evidence of complainant to find out whether a case is
made out under section 420 of the Indian Penal Code. The order dated
22.6.2010 passed by the trial Magistrate on Exh. 57 was also set aside.
3.
It appears that a complaint was lodged by the respondent-
complainant against the present revision-applicants on the ground that the
accused no.1 Ajay Ramesh Bhute came in the shop of complainant in order
to buy a television of Sansui company for a sum of Rs,19,990/- on credit
with promise that the amount of price will be paid soon. Since the
proprietor of the complainant M/s Jai Matadi Electronics was on cordial
terms with the accused Ajay, he agreed to sell the TV on credit. Pursuant to
the transaction, the accused gave a cheque bearing No. 037708 dated
14.9.2006 drawn upon Wardha Nagari Sahakari Adhikosh Bank, Main
Branch, Wardha. Accordingly, the cheque was presented; but the Banker by
memo dated 15.9.2006 informed the complainant that since the account of
the accused was closed, the cheque could not be encashed. Thereafter the
complainant sent a notice dated 18.9.2006 by registered post
acknowledgment due Which was received by accused no.1- Ajay. Even
thereafter he did not pay the price. The notice was also sent under
certificate of posting, to which the accused sent reply dated 26.9.2006 and
denied the transaction categorically, contending that the cheque given was
not drawn upon his own account and it is for the complainant to seek as to
on whose account the cheque was drawn. The complainant came to know on
enquiry that the accused no.1 had deliberately, in order to harass the
complainant, gave cheque which was in fact drawn upon account belonging
to accused no.2 - Ramesh Sadashiv Bhute, who was also in know of the
entire transaction. Thus, both of them had harassed the complainant
although they knew that the account was closed. Left with no option, the
complainant was constrained to prosecute them for alleged offence punishable
under section 138 of the Negotiable Instruments Act, ( in short "the N.I. Act")
as also under section 420 of the Indian Penal Code.
4. It appears that in support of the the complaint, Bharat
Ramswarup Kungar, Proprietor had verified the complaint in respect of the
facts mentioned above. The complainant was also allowed to be cross-
examined on behalf of the accused in respect of statement made on oath by
or on behalf of the complainant. Under these circumstances, the learned
Magistrate was called upon to issue process under section 138 of the N.I. Act
as also u/s 420 IPC.. However, it appears that the process issued by the
learned Magistrate was limited to Section 138 of the N.I. Act. Thus, the
complainant moved an application Exh. 57 pointing out to the Magistrate
the evidence of the complainant and witness on behalf of the complainant and
also the accusations made under section 420 IPC and prayed for to take
into consideration the pleadings of the complainant so as to frame charge
against the accused u/s 420 of IPC as well. The learned Magistrate who heard
the application Exh. 57, made observations that no special ingredients
other than as alleged in the complaint, have been made out to attract Section
420 of IPC and that even though the charge can be altered or added at any
stage, still sufficient ingredients must be proved for attracting section which
is to be altered.
5. Learned Advocate for the respondent no.1/complainant took
exception to the observations in the order passed by the Magistrate below Exh.
57 and challenged the same in Criminal Revision Application No.85/2010. The
learned Sessions Judge who made reference to impugned order and
observations made therein, found that no comments were made regarding
the evidence of the complainant to determine whether it made out an offence
under section 420 of IPC. The learned Sessions Judge also found that the
learned Magistrate did not properly appreciate the evidence led before him,
before passing the order rejecting Application Exh. 57. Thus, the learned
Sessions Judge was pleased to set aside the order passed by the Magistrate
below Exh. 57 on 22.6.2010 and directed the Magistrate to appreciate the
evidence of the complainant to know whether complainant made out a case
under section 420 of the IPC.
6. Learned Advocate for the applicants submitted that the impugned
order passed by the Sessions Judge palpably failed to consider the order of the
Magistrate in its totality including verification and evidence adduced by the
complainant while observing that no comments were made by the Magistrate
regarding the evidence of the complainant. It is further criticized that the
revisional court acted contrary to the facts on record and passed the perverse
order.
7.
Learned Advocate for the respondent no.1 /complainant as well
as learned Additional Public Prosecutor for respondent No.2 supported the
impugned order on the ground that when application was filed specifically so
as to consider the evidence of the complainant which was recorded, the
learned Magistrate failed to appreciate the triable accusation which was
clearly made out by the complainant in the course of his evidence. The
complainant was also cross-examined on behalf of the accused. Under these
circumstances, the direction passed by the learned Sessions Judge to the
Magistrate to consider the evidence in accordance was just, proper and legal.
8. Learned Advocate for the complainant (respondent no.1) also
made reference to ruling in Sharan P. Khanna vs. Oil and Natural Gas
Corporation Limited and another reported in 2010 Cri.L.J. 4256 (Bombay
High Court) wherein this Court has made observations in respect of
prosecution under section 138 of the N.I. Act along with section 420 of the
IPC making reference to Section 220 of Cr.P.C. This Court had observed
that although the offence under section 420 IPC and offence under section
138 of the N.I. Act are totally distinct and their ingredients are different still
if both offences were committed during the same transaction the accused
could have been charged and tried for both the offences during single trial as
per Section 220 of Cr.P.C. Seciton 220 of Cr.P.C. Is an enabling provision
whereby two or more different offences may be tried together by the Court
although the terms used in Section 220 Cr.P.C. are enabling and not
mandatory.
9. Looking to the ruling in Sharan P. Khanna's case (supra) as also
the legal position in this regard, it must be said that at the stage of framing
charge the Court need not enter into an elaborate enquiry in sifting and
weighing the material not it is necessary for the Court at that stage to
delve deeper into various aspects of the case. Suffice it to say that the duty
of the Judge concerned at the stage is to apply his mind to the material on
record to form his opinion as to whether there is sufficient ground to
proceed further against the accused if prima facie case is made out against the
accused the charge is required to be framed. Even a strong suspicion
against the accused is sufficient so as to frame charge against the accused at
the prima facie stage of framing charges in a criminal case. The Magistrate
need not be fully satisfied about the proof of essential ingredients of an
offence which are required to be proved at the final hearing of the case. It
appears that this distinction was overlooked by the learned Magistrate while
passing the order dated 22.6.2010 below Application Exh.57. Therefore,
interference with the said order by the learned Sessions Judge in exercise of
revisional jurisdiction was necessary and proper. That being so, no
interference is required in the impugned judgment and order passed by the
learned Sessions Judge.
10. Revision Application is dismissed, with no order as to costs.
JUDGE
sahare
