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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
V.M. DESHPANDE, J.
Deep - Applicant
Versus
Dr. Murli Hanumandas Agrawal & Others - Respondents
Criminal Application (Apl) No. 383 of 2012
Decided On : 20-09-2017
Process Issuance - Criminal Complaint - Section 500 of IPC - [Section 500 of IPC] - The court discussed the process issuance under Section 500 of the IPC against the accused and emphasized the need for the magistrate to apply his mind to the facts and evidence before summoning the accused. The court highlighted the importance of scrutinizing the evidence and verifying the facts mentioned in the complaint before issuing the process.
Fact of the Case:
The applicant, a director of a company, filed a complaint against other directors and a bank official for issuing cheques against a resolution. The process was issued against the accused under Section 500 of the IPC, leading to the present proceedings.
Finding of the Court:
The court found that the process issuance by the magistrate was erroneous as it lacked the application of mind and verification of facts. It also concluded that the ingredients of Section 499 of the IPC were not fulfilled by the complainant.
Issues: The issues revolved around the process issuance under Section 500 of the IPC, the application of mind by the magistrate, and the fulfillment of the ingredients of Section 499 of the IPC.
Ratio Decidendi: The court emphasized the need for the magistrate to apply his mind to the facts and evidence before summoning the accused and highlighted the importance of scrutinizing the evidence and verifying the facts mentioned in the complaint before issuing the process.
Final Decision: The court dismissed the application and discharged the rule.
1. Heard Mr. S.V. Sirpurkar, Advocate for applicant and Mr. I. Damle, A.P.P. for non applicant no.4. Counsel for the non applicant nos.1 to 3 chose not to remain present when the matter was called out for final hearing.
2. Learned counsel for the applicant seriously assailed the judgment and order passed by learned Additional Sessions Judge, Khamgaon dated 11.03.2010 in Criminal Revision No.121/2008 and Criminal Revision No.38/2009 whereby the learned revisional Court allowed those two criminal revisions and set aside the order passed by the learned Judicial Magistrate First Class, Akola in Misc. Criminal Case No.136/2008 whereby the process for the offence under section 500 of the IPC was issued against the non applicant nos. 1 to 3.
3. Few facts giving rise to the present application are as under:
(i) The applicant and the non applicant nos. 1 and 2, at the relevant time were the Directors of Vidarbha Refineries Limited (hereinafter referred to as “Directors” for the sake of brevity). Non applicant no.3Pradip Chitre, at the relevant time, was Manager of Bank of India and was working with Assets Recovery Management Service Branch, Mumbai.
(ii) The applicant filed complaint against the non applicant nos. 1 to 3 with an assertion that in the meeting dated 05.01.2002, the Directors of the company resolved that no transaction with any bank would take place without signature of all Directors. As per the complaint, the said resolution was communicated to the bankers. It is further the case of the applicant/complainant that non applicant no.1-Dr. Murli Agrawal, in spite of the knowledge of the resolution passed in the meeting dated 05.01.2002, issued two cheques of the Bank of India dated 01.12.2005 and 10.12.2005 for Rs.5,00,000/- each on behalf of the Vidarbha Refineries Ltd. According to the complaint, the said cheque was dishonoured and therefore the Bank of India, filed a complaint against the applicant and non applicant nos. 1 and 2 for an offence punishable under Section 138 of the Negotiable Instruments Act at Mumbai. The learned Court trying the said criminal complaint filed by the Bank of India, issued the process against the applicant and the non applicant nos.1 and 2 for the offence under Section 138 of the Negotiable Instruments Act. The said summons was served upon the applicant at Khamgaon and according to the applicant-complainant that has dis-reputed him and that gave an occasion to file the complaint in question at Khamgaon.
(iii) In the said criminal complaint, the complainant not only joined the Directors but also non applicant no.3 who was a bank official of the Bank of India. In the complaint itself, it is stated by the applicant/complainant that the complaint filed by the Bank of India was withdrawn and at the time of filing of the complaint in question, criminal complaint filed by the Bank of India was not in existence. Along with the complaint, the applicant filed following documents as per the list of the documents appended to the complaint.
“List of Documents:
1. Reply of Ramesh M. Agrawal & Prem M. Saraf, DRT, Mumbai.
2. Notice to Deep R. Saraf, Mumbai Court.
3. Mumbai Court settlement paper.
4. Dena Bank Mumbai, Shares sales case paper in Khamgaon Court.
5. Any other document on which the complainant relies, reserves his right to file the same at the relevant stage.”
4. The learned Magistrate on 10.11.2008 passed the following order :
“Perused complaint along with verification and affidavit, likewise, list of documents. Complainant prima-facie established his case. Case is within limitation. Issue process under Section 500 of I.P.C. against accused No.1 to 3 on P.F.”
5. Non applicant nos.1 and 2 questioned the wisdom of the learned Magistrate of issuance of process by filing Criminal Revision No.121/2008. Similarly, non applicant no.3, the bank official also filed separate Criminal Revision viz. Criminal Revision No.38/2009. The learned Sessions Judge, Khamgaon decided those two criminal revisions by common
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