Madhya Pradesh High Court
Vaibhav Khare vs Kamal Kishore Arya on 30 March, 2022
Author: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 30th OF MARCH, 2022
CRIMINAL REVISION No. 775 of 2020
Between:-
VAIBHAV KHARE S/O OM PRAKASH KHARE, AGED
ABOUT 30 YEARS, OCCUPATION:
OWNER/PROPRIETOR VAIBHAV COMPUTER
SERVICE R/O H. NO. M-35 NIRALA NAGAR NEAR
SAHYADRI PARISAR BHADBHADA ROAD BHOPAL
M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI S. P. KHARE, ADVOCATE)
AND
KAMAL KISHORE ARYA S/O SHRI G.P. ARYA
OCCUPATION: OWNER/PROPRIETOR KUSUM
NETWORK R/O SHOP NO. L-7 SHRISTI COMPLEX
PLOT NO. 206 ZONE -1 M.P. NAGAR BHOPAL DISTT.
BHOPAL M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANISH SONI, ADVOCATE)
Th is revision coming on for admission this day, the court passed the
following:
ORDER
This Criminal Revision filed under Section 397/401 of Cr.P.C. is directed
against the order dated 23.1.2020 passed by the XXIV Additional Sessions Judge,
Bhopal in Cr.A. No.417/2018 (Vaibhav Khare Vs. Kamal Kishore). Learned
Appellate Court by the impugned order rejected an application under Section 391
of Cr.P.C filed by the appellant/ accused.
2. Brief facts necessary for deciding this matter are that the non applicant/
complainant filed a complaint against the petitioner under Section 138 of
Negotiable Instruments Act (herein after referred to as 'N.I.Act'). Learned JMFC,
Bhopal passed judgment dated 15.6.2018 in CNRT No.9958/2014 (Kamal Kishore
Vs. Vaibhav Khare) and convicted the petitioner for offence under Section 138 of
N.I.Act and sentenced to 1 year S.I. and also directed the petitioner/ accused to
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pay compensation to the tune of Rs.2,72,000/- to the complainant/ non-applicant.
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Date: 2022.04.01 14:33:01 IST
The petitioner preferred an appeal which was registered as Cr.A. No.417/2018. In
the said appeal, the petitioner moved an application under Section 391 Cr.P.C. and
prayed for taking the document on record. The First Appellate Court/ Court of
Additional Sessions Judge, Bhopal rejected the said application by the impugned
order.
3. Assailing this order, learned counsel for the petitioner Shri S. P. Khare has
contended that application under Section 391 of Cr.P.C. should have been
considered and decided after hearing the criminal appeal on merits and should not
have been disposed of in isolation without hearing the appeal on merits.
4. Learned counsel for the petitioner has placed reliance on an order dated
20.11.2015 passed in Criminal Revision No.781 of 2012 (Durgesh Kumar Vs. J. B.
Singh) order dated 20.11.2015 passed by the co-ordinate Bench at Gwalior.
5. On the other hand, Shri Manish Soni, leaned counsel for the complainant/
non-applicant supported the impugned order. He has submitted that the learned
Additional Sessions Judge has not committed any error in deciding the
interlocutory application under Section 391 of Cr.P.C. at interlocutory stage.
Section 391 of Cr.P.C. no where prohibits the Court that such application must be
decided at the time of final hearing of the matter.
6. I have gone through the impugned order and submissions put-forth by the
learned counsel for the parties and perused the record.
7. The co-ordinate Bench of this Court at Gwalior in Durgesh Kumar's case
(supra) considered the judgment of Rambhau and another Vs. State of
Maharashtra - (2001)4 SCC 759; State of Rajasthan Vs. T. N. Sahani -
(2001)10 SCC 619; Khemchand Vs. Government of M.P. and others - 1972
MPLJ 524 and Dharmendra Vs. State of M.P. - 2006(1) MPLJ 436 and came
to the conclusion that judgment in the case of Dharmendra (supra) is based on a
Supreme Court judgment in the case of T. N. Sahani (supra) and it has been held
that Section 391 of Cr.P.C. is akin to Order 41 Rule 27 of CPC and an application
under Section 391 of Cr.P.C. should not be considered in isolation but should be
considered after hearing the parties on merits. If after hearing the parties on merits,
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Date: 2022.04.01 14:33:01 IST
while deciding the appeal application under Section 391 of Cr.P.C. can be
dismissed.
8. Undisputedly in this case, learned Additional Sessions Judge has decided
the application under Section 391 of Cr.P.C. at the interlocutory stage. Therefore,
placing reliance on the aforesaid order passed in Durgesh Kumar (supra), I am also
of the view that learned Additional Sessions Judge has committed an error in
deciding the application under Section 391 of Cr.P.C. at interlocutory stage.
9. Resultantly, the impugned order dated 23.1.2020 passed by the XXIV
Additional Sessions Judge, Bhopal so far as it relates to dismissal of application
under Section 391 of Cr.P.C. at interlocutory stage, is set aside. Learned Court
below is directed to proceed in accordance with law by taking into account the
order passed by this Court in the case of Dharmendra Vs. State of M.P. (supra)
and order dated 20.11.2015 passed in Cr.R. No.781/2012 (Durgesh Kumar Vs. J.
B. Singh) .
10. Thus, Criminal Revision is allowed accordingly.
(DINESH KUMAR PALIWAL)
JUDGE
mrs. mishra
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Digitally signed by DEEPA MISHRA
Date: 2022.04.01 14:33:01 IST
