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2019 Supreme(Raj) 2019
IN THE HIGH COURT OF RAJASTHAN
Kanwaljit Singh Ahluwalia, J.
Prakash Chand And Another - Appellant
Versus
State Of Rajasthan, Thr. Pp, Rajasthan And Another - Respondent
Criminal Miscellaneous (Petition) No. 5103 of 2018
Decided On : 31-01-2019
Mr. Suresh Sahni Sr. Counsel with Mr. R.M. Sharma, Advocate, for the Appellants; Mr. V.S. Godara PP, Mr. Sudesh Bansal for the respondent No. 2, for the Respondents
The delay and laches on the part of the petitioners, along with the subsequent passing of the order of cognizance, rendered the petition devoid of merits.
Headnote:
Negotiable Instruments Act - Cheque Bounce - The court dismissed the petitioners' application for further investigation under Section 156(3) Cr.P.C. and subsequent revision petition for ordering further investigation, citing delay and laches on the part of the petitioners and the subsequent passing of the order of cognizance.
Fact of the Case:
Respondent No. 2 allegedly issued two cheques in favor of the petitioners, which bounced. The petitioners filed complaints under Section 138 of the Negotiable Instruments Act. Respondent No. 2 also filed a complaint alleging forgery and fabrication of bank return memo, leading to further investigation and the court taking cognizance of offenses under various sections of the IPC.
Finding of the Court:
The court found that the delay and laches on the part of the petitioners, along with the subsequent passing of the order of cognizance, rendered the petition devoid of merits and dismissed it.
Issues: The main issue was the delay in challenging the order for further investigation and subsequent order of cognizance.
Ratio Decidendi: The court held that the irregularity should have been challenged at the initial stage and that the delay and subsequent passing of the order of cognizance rendered the petition devoid of merits.
Final Decision: The petition was dismissed due to delay and laches on the part of the petitioners and the subsequent passing of the order of cognizance.
JUDGMENT
1. Today, an application bearing No. 83334/2018 is listed, wherein it is prayed that SBCRLMP No. 5103/2018 be finally disposed of to give affect to the orders passed by this Court in other petitions.
2. On the joint request made by the learned counsel for the parties, SBCRLMP No. 5103/2018 is taken up for final disposal.
3. This case has a chequered history. Respondent No. 2 Rajkumar Jain had allegedly issued two cheques in favour of the petitioners. The said cheques on presentation had bounced. Resultantly, both the petitioners filed two separate complaints under Section 138 of Negotiable Instruments Act.
4. Before institution of complaint, respondent No. 2 had filed a complaint alleging that the petitioners had forged and fabricated the bank return memo. On the said complaint, order was passed under Section 156(3) Cr.P.C. and FIR No. 126/2008 was registered at Police Station Kotwali, Kota for the offences under Sections 420, 406, 409 and 120B IPC. In the said FIR, the investigating agency filed the Final Report in negative form by opining that the dispute is civil in nature. Respondent No. 2 filed a protest petition and the said protest petition was treated as complaint and preliminary evidence of the complainant was recorded. Thereafter, the trial court on 29.9.2011 dismissed the complaint. Aggrieved against the same, the respondent No. 2 filed a revision petition. In the said revision petition, the revisional court below on 5.8.2016 ordered to hold further investigation. The police after further investigation filed a report in terms of Section 173(2) Cr.P.C. and the court of Magistrate took cognizance of offences under Sections 420, 406, 467, 468, 471 and 120B IPC.
5. The order of cognizance was passed on 5.3.2018. After 5.8.2016 i.e. from the date impugned order was passed by the revisional court below, much water has flown resulting into passing of order dated 5.3.2018 by the trial court, whereby the cognizance of offences was taken.
6. This Court on 28.8.2018 had passed the following order:-
"Shri Suresh Sahni, learned counsel for the petitioners contends that on the complaint filed by respondent No. 2, concerned Magistrate passed orders under Section 156(3) Cr.P.C. and consequently, FIR was registered against the accused petitioners. Learned counsel submits that in the above said FIR, investigating agency submitted Final Report in negative form.
Learned counsel contends at bar that after filing of Final Report in negative form by the investigating agency, the Court of Magistrate proceeded under Chapter-XV of Code of Criminal Procedure and recorded preliminary evidence of the complainant under Section 200 Cr.P.C. Learned counsel submits that having recorded preliminary evidence, the Court of Magistrate had dismissed the complaint and aggrieved against the same, the complainant preferred a revision petition. Learned counsel contends that the revisional court below in the impugned order has ordered further investigation which is not permissible. Learned counsel submits that once the procedure under Chapter-XV of Code of Criminal Procedure was resorted to, the only remedy for the court below was to order inquiry under Section 202 Cr.P.C. or take cognizance of the offence, but in no way the investigating agency can be directed by the revisional court to carry further investigation.
Issue notice to respondents for 13.11.2018.
Meanwhile, operation of the impugned order shall remain stayed."
7. It was incumbent for the petitioners to assail the order dated 5.8.2016 before passing of order of cognizance. For a good period of two years, the order passed by the revisional court below whereby further investigation was ordered, was not challenged.
8. A perusal of the Section 465 Cr.P.C. will lead to only inference that irregularity should have been challenged at very initial stage. Even otherwise, irregularity committed by the revisional court below will not fall under Section 461 Cr.P.C., as one which will vitiate the proceedings. Th
