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IN THE HIGH COURT OF MADHYA PRADESH
Indrani Datta, J.
Mohan Mandelia
Vs.
State of M.P. and Anr.
M. Cr. C. No. 2853/2008
Decided On: 22.10.2010
Held: In State of Haryana and others v. Bhajan Lal and others [1992 Suppl.(1) SCC 335], in which following categories of cases are stated by Hon ble apex Court by way of illustration, wherein the extraordinary power under Article 226 or the inherent powers under section 482 CrPC can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure ends of justice:
(I)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Wherein allegations in the first information report and other materials, if any, accompanying the FIR do not disclose cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Wherein the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
On perusal of the record of learned trial Court, it is apparent that case of complainant is not covered under any of the categories mentioned in above case, therefore, this is not a fit case to invoke the power under section 482 of CrPC. 1992 Suppl.(1) SCC 335 followed. [Para 26]
(2) Procedure -- examination of witness prior to complainant -- is mere an irregularity and not illegality -- not a ground to hold all the proceedings void ab-initio. [Para 22]
(3) Jurisdiction -- complainant stated that payment being made at Gwalior -- Gwalior Court has jurisdiction in the case. [Para 23]
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Indrani Datta, J.
1. This common order shall govern the disposal of M.Cr.C. No. 2853/2008 (Mohan Mandelia v. State of M.P. and Anr.) and M.Cr.C. No. 3234/2008 (Sant Kumar Sharma v. Rakesh Yadav and Anr.) as they arise out of same order dated 04.02.2008 passed by the learned JMFC Gwalior; whereby, on a complaint filed by Respondent No. 1 Rakesh Yadav, cognizance has been taken against the Petitioners under Section 138 of Negotiable Instruments Act (for brevity "Act") and under Sections 417, 418, 420, 466, 468, 471, 120-B of IPC.
2. Facts in compendium are that Respondent Rakesh filed a complaint against the Petitioners under Section 138 of Act and Sections 417, 418, 420, 465, 467, 468, 471, 120B IPC. As per averments of complaint, Petitioner Mohan Mandelia and accused Beena Mandelia are doing business of making cartons and business is run in the name of GNTV. There was cordial relationship between complainant and Petitioner Mohan. Complainant used to give loan to Petitioner Mohan and his wife accused Beena from time to time and they used to return the said amount to complainant. It is further averred that from the year 2005 to July 2007 on various occasions Rs. 5 lac two times, Rs. 10 lac and Rs. 9 lac i.e. total Rs. 39 lac have been given as loan by the complainant to Petitioner and his wife accused No. 1 and 2. That amount has not been returned by them. When the amount was demanded by the complainant, they tendered one cheque bearing No. 038504 of Bank of India, Phoolbagh Branch, Gwalior dated 08.10.2007 of Rs. 39 lac which was signed by accused No. 1 Beena by assuring that when cheque is presented it will be honoured. After its presentation for encashment, the said cheque stood dishonoured with the endorsement of "insufficient funds". Cheque was returned by Bank of India Phoolbagh Branch in a sealed envelope, it is alleged that when complainant opened the envelope he found that in the Cheque it was mentioned that "Cheque issued for gift, valid up to Rs. 1,000/-". When cheque was given to complainant by Petitioner and co-accused Beena at that time the hand written language and seal was not there. When information with regard to said cheque was sought from Branch Manager of Bank of India Phoolbagh Branch it was intimated that cheque was submitted by the Oriental Bank of Commerce for clearing which was returned by Bank of India because of insufficient fund and cheque was returned in original and Bank of India is having nothing to do with the seal and hand-written language on the cheque.
3. It is further averred in the complaint that Petitioner Sant Kumar Sharma, Branch Manager of Oriental Bank of Commerce handing in glove with Petitioner Mohan and accused Beena has forged, the cheque by writing on that cheque the words "Cheque Issued for gift, valid up to Rs. 1,000/-". At the time when the cheque was presented in Bank of India words "Cheque issued for gift, valid up-to Rs. 1,000/-" were not there and seal and handwritten language was not there which was found when cheque was returned to complainant on account of insufficiency of funds. Hence, it is apparent that this forgery was committed and seal and aforesaid hand written words were written when cheque was returned to Oriental Bank of Commerce by Bank of India. On this complaint, the learned trial Court recorded the statement of complainant and witnesses under Section 200 and 202 Code of Criminal Procedure and vide order dated 04.02.2008 has taken cognizance against the Petitioners for commission of offence under Sections 420, 467, 468, 471, 120-B IPC and Section 138 of the Act, giving rise to present petitions.
4. It is contended by learned Counsel for Petitioner Sant Kurnar that main dispute of alleged transaction is between the Petitioner Mohan, accused Beena and complainant. Petitioner Sant Kumar is having no role to play. Offence under Section 138 of the Act is not made out against the Petitioner Sant Kumar and the allegations levied are improper. Petitioner as Branch M
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