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2016 Supreme(MP) 257
HIGH COURT OF MADHYA PRADESH
Smt. S.R. Waghmare, J.
Dhanpal Dosi v. State of M.P. and another
Criminal Revisions No.1163 and 1191 of 2012 (Indore) : against the order dated 6.8.2012, passed by X Additional Sessions Judge, Indore in Criminal Revisions No.270 and 271 of 2011; Decided on 3.3.2016.
Vivek Singh for petitioner.
Peyush Jain, Deputy Government Advocate for respondent No.1/State.
Vinay Saraf for respondent No.2/complainant.
Headnote:Negotiable Instruments Act, 1881 -- Ss.138 and 141 -- Criminal P.C., 1973 -- Ss.156(3), 200 and 202 -- Penal Code, 1860 -- Ss.420 and 120B -- matter of non-payment of money or dishonour of cheques -- co-accused admitted signature on cheques which were issued by her in her capacity being Manager -- transactions of trading of commodity between parties admitted by petitioner -- allegations of cheating or fraud not made out -- trial Court considered evidence and documents and reply to notice -- then dismissed complaint -- there was no impediment to Magistrate from discharging accused under -- no reasons to interfere in powers vested in Court of Sessions -- petitions dismissed.
Held : I find that there was no impediment to the Magistrate from discharging the accused for offence under sections 420 and 120B of the IPC since the Magistrate has considered at length documents that were before him and it was also not mandatory on record further evidence and ultimately conclusion reached by Magistrate led him to discharge the accused. Hence this Court find no reasons to interfere in the powers vested in the Court of Sessions. 2014(1) JLJ 404 (SC) and (2005)8 SCC 89 followed. 2004(3) MPLJ 485 and 1983 MPLJ 56 relied on. 1990 MPLJ 39 referred to.
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1. These two revision petitions are dealt together since they are between the same parties since the complainant is the same and the disputed cheques have been issued by the same accused petitioner as part of the business transactions.
2. The petitioner Dhanpal Dosi has filed the present petitions being aggrieved by the order dated 6.8.2012 passed by Xth A.S.J., Indore in Criminal Revisions No.270/2011 and 271/2011, whereby learned trial Court has dismissed the complaint of respondent No.2 Vijay Shah for offence under sections 420, 120B of the IPC but took cognizance of the offence under section 138 of N.I. Act.
3. Briefly stated the facts of the case are that complainant Vijay Shah was having business in M.T.H. Compound and working in the name of Lucky Chemical Corporation, and whereas the accused Dhanpal Dosi was the Director of Indo-Thai Commodity Exchange Pvt.Ltd. and was a corporate member of M.C.X. and dealing in commodity and also providing service to customers. There are transactions drawn between the parties and the complainant Vijay Shah has deposited margin money with the accused for the purpose of trading. And the co- accused Prabha Nagar was the Manager of the said commodity exchange who sent the account statements of the complainant Vijay Shah from time to time; that several amounts, were outstanding as dues from the accused petitioner. In this regard accused petitioner gave post dated cheque on 20th May 2009 in favour of the complainant Vijay Shah of Canara Bank, Siyaganj Branch, R.N.T. Marg, Indore and these cheques were signed by co-accused Prabha Nagar. The complainant Vijay Shah had produced cheque No.223602 of Rs.12,00,000/- on 3.5.2009 and cheque No.223604 of Rs.9,00,000/- on 18.5.2009 and cheque No.223603 of Rs.8,00,000/- on 19.5.2009 for encashment in HDFC Bank, New Palasia, Indore. The cheques were returned with an endorsement “stop payment”. However, legal notices were issued on 31.8.2009 and 14.9.2009 through lawyers to the accused person, demanding the cheques amount, money was not paid and complaint was lodged for offence under sections 420 and 120B of the IPC before the Magistrate and he dismissed the complaint and the learned JMFC took cognizance under section138 of N.I. Act and issued process. The revision was filed by the complainant before the Court of Sessions and learned A.S.J. allowed the revision and setting aside the order of not taking cognizance under sections 420 and 120B of the IPC. The matter was remanded back and the revisional Court directed that the lower Court should examine the complaint, statements of witnesses, documents and take cognizance afresh. Being aggrieved by the order passed by the revisional Court, the present cross-petitions have been filed.
4. Counsel for the petitioner has vehemently urged the facts that there was collusion between the complainant Vijay Shah and co-accused Prabha Nagar and that Prabha Nagar was never authorized to sign these cheques. The main ingredients for offence under sections 420 and 120B of the IPC is that there should be dishonest intention right from inception with crime, which is lacking in the present petition. The learned Judge of the revisional Court exceeded the jurisdiction since at the most the trial order could further order inquiry under section 156(3) of the CrPC but cannot frame the charges afresh. Counsel for the petitioner has vehemently urged the facts and circumstances of the case that offence under sections 420 and 120B of the IPC or even offence under section 138 of N.I. Act was not maintainable at all and the revisional Court had erred in discharging the accused only for offence under sections 420 and 120B of the IPC. Counsel submitted that both the orders be set aside and the petitioner be discharged from the aforesaid offences.
5. At this juncture, counsel placed reliance in the matter of Rajaram Gupta and others v. Dharamchand and others [1983 MPLJ 56], whereby the Court had held that bare possibility of an additional
