Back
2011 Supreme(Bom) 919
2011 ALL MR (Cri) 3709
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A.P. BHANGALE, J.
Smt. Harjeet Kaur Wd/o. Manmohan Singh Bawa – Appellant
Vs.
Arunkumar Chandulal Pobaru & Anr. – Respondent
Criminal Application No. 1710/2010
Decided on : 3rd August, 2011.
Mr. S. V. SIRPURKAR, Counsel for the Applicant
Mr. M. M. AGNOHOTRI, Counsel for Respondent No.1 Mr. D. B. YENGAL, APP for Respondent No.2
Headnote:Criminal Procedure Code, 1973 - Sections 204 and 482-Negotiable Instruments Act, 1881, Sections 138-Insurance of process-Quashing of-Accused has no right to participate in inquiry at stage prior to issuance of process-Magistrate has no jurisdiction to permit accused to participate in inquiry-Accused not entitled to interfere nor required to be heard on question as to whether process should be issued against him or not.-Process is issued by prima facie application of mind by the trial Magistrate after he decided to proceed under Chapter XV of the Code of Criminal Procedure and, then if he is satisfied of the sufficient ground to proceed further, process may be issued. At this preliminary stage, the Magistrate becomes conscious of the allegations made pursuant to the verification statement of the complainant, if any, and upon hearing the complainant, if Magistrate finds prima facie case, he may issue process, since the trial for the offence punishable under Section 138 of the Negotiable Instruments Act is triable as a summons case or summary case. No hearing is necessary for the accused at this preliminary stage nor there is any need for to hear the accused at this preliminary stage, at the stage prior to issuance of process. Because, accused has no right nor the Magistrate has jurisdiction to permit the accused to participate in the inquiry at the stage prior to issuance of process. The accused has no right to intervene nor he is required to be heard on the question as to whether process should be issued against him or not.
Heard Mr. K. D. Deshpande, learned counsel for the applicant, Mr. M. M. Agnihotri, learned counsel for the Respondent No. 1 and Mr. D. B. Yengal, learned APP for Respondent No.2.
2. By means of this application under Section 482 of the Code of Criminal Procedure, the applicant prayed to set aside the impugned order dated 21/09/2010, passed by the learned Sessions Judge, Yavatmal in Criminal Revision No. 68/2006 and further prayed to quash and set aside the criminal proceedings in complaint case no. 5133/05, pending before the 4th Court of J.M.F.C. Yavatmal on the ground that it is highly illegal, bad in law as well as void-ab-initio.
3. The facts are that the criminal complaint was lodged by Shri. Arunkumar Chandulal Pobaru, Proprietor of Sarvottam Petro Marketing, resident of Jaju Nagar, Darwha Road, Yavatmal through his attorney Murad Mehahdi Mohd. Jiwani against Smt. Manjeet Kaur Bawa @ Harjeet Kaur Manmohan Singh Bawa for offence punishable under Section 138 of the Negotiable Instruments Act.
4. It is averred in the complaint that the accused Smt. Manjeet Kaur Bawa @ Harjeet Kaur Manmohan Singh Bawa was running business in the name and style as "New Sona Transport Agency" at Wani. She had requested the complainant to sell the diesel for her trucks being used for transport business. As per her requisition, diesel was sold on credit by the complainant firm. She had issued a cheque bearing no. 180055 drawn upon Bank of India, Branch Bhamani, Dist. Chandrapur, on 17/10/2005, for Rs. 5,82,261/-. The cheque was presented by the complainant in State Bank of India, Wani on 28/10/2005. The cheque was returned dishonoured with remark "Funds Insufficient". Thus, notice of demand was sent by the complainant through Advocate Shri Paraskumar T. Darda, by RPAD as well as UPC demanding cheque amount of Rs. 5,82,261/- as also notice cost of Rs. 300/- within 15 days. The notice which was sent by RPAD returned with remarks "Not claimed" after intimation returned to sender. Thus, with such postal remark, the envelope was returned while notice sent under postal certificate was received by the accused. The amount demanded was not paid within the stipulated period and, therefore, the complaint was lodged with prayer to punish the accused for an offence punishable under Section 138 of the Negotiable Instruments Act. It appears that the complainant was intending to examine the officials from the Bank of India, Bhamani Branch as also officials concerned, from the State Bank of India, Wani Branch. After the complaint was verified on behalf of the complainant, the learned trial Magistrate issued process for an offence punishable under Section 138 of the Negotiable Instruments Act. The accused preferred a Criminal Revision Application to question the legality, propriety and correctness of the order as to issuance of process dated 12/12/2005 as also consequent warrant issued at Exh.19, by the learned trial Magistrate, 4th Court, Yavatmal. According to the accused, Manjit Kaur and Harjeet Kaur are two different ladies and notice was not issued to the accused. It was also contended that the complaint was not signed by the payee (complainant) but it was signed by the power of attorney holder for the complainant.
5. It was grievance of the applicant that the name of the accused was allowed to be changed by the learned trial Magistrate without giving an opportunity of hearing to the accused. As far as later contention is concerned, learned revisional Court relied upon ruling in the case of Waman Laxman Sawant Vs. Ashok Anand Sawant and another reported in 2005 ALL MR (Cri) 334 in which Court had observed that the Courts have incidental powers which are necessary for their survival and existence as Criminal Procedure Code has not been enacted to meet each and every situation which human ingenuity may create from time to time. Thus, considering the judicial discretion in Waman Laxman Sawant's case (supra), no fault can be found with the order as to co
