IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUBODH ABHYANKAR ON THE 5^th OF FEBRUARY, 2024 MISC. CRIMINAL CASE No. 4449 of 2024 BETWEEN:-

BRIJESH SINGH TOMAR S/O LATE SHRI H.S. TOMAR, AGED ABOUT 60 YEARS, OCCUPATION: SERVICE 20/2, SILVER LINE, MANORAMAGANJ, INDORE (MADHYA PRADESH)

.....PETITIONER (BY SHRI S. K. VYAS, SENIOR ADVOCAT WITH MS. NEHA YADAV, ADVOCATE FOR THE PETITIONER)

AND THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THROUGH POLICE STATION HATHPIPLIYA DISTRICT DEWAS (MADHYA PRADESH)

.....RESPONDENT (BY MS. HARSHLATA SONI, P.L./G.A. )

……………………………………………………………………………………..

This application coming on for admission this day, the court passed the following:

ORDER

Heard finally with the consent of the parties.

2] This petition has been filed by the petitioner under Section 482 of the Cr.P.C., for quashing the order dated 11.01.2024, passed by the II Additional Sessions Judge, Bagli, District Dewas passed in S.T. No.71/2015 whereby, the learned Judge of the Trial Court has taken Signature Not Verified cognizance against the petitioner on an application filed by the respondent under Section 319 of the Cr.P.C., under Sections 420 and

409 of the IPC.

3] In brief, the facts of the case are that the FIR in the present case was filed on 06.04.2014 under Sections 406, 409 and 420 of the IPC against one Krishnadas Vaishnav, who was posted as Office Assistant Grade-II, Karnawat Centre of Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company Ltd and against the aforesaid accused person, certain embezzlement of Rs.42,89,218/- was alleged. The FIR was made on the basis of a written complaint of the Executive Engineer along with the present petitioner. Thus, the petitioner was initially one of the complainants in the said case.

4] In the aforesaid case 14 witnesses have already been examined and the present petitioner has been examined as PW-12 and, after the examination of the present petitioner was completed, an application under Section 319 of the Cr.P.C. has been filed by the prosecution contending that the petitioner PW-12 Brijesh Singh Tomar and other witnesses have admitted that on many documents the petitioner has also appended his signatures and the responsibility to deposit the amount of electricity bills was also of the petitioner either by himself or through him and thus, the petitioner is also hand in gloves with the main accused Krishnadas and he has also committed the offence of embezzlement of the tune of Rs.42,89,218/-. The aforesaid application has been allowed by the learned Judge of the Trial Court wherein, the Court has referred to various paragraphs of the petitioner‘s deposition in the Court to hold that the petitioner has Signature Not Verified admitted his signatures on various documents. The aforesaid order is under challenge before this Court.

5] Shri S. K. Vyas, learned senior counsel assisted by Ms. Neha Yadav, counsel for the petitioner has stressed upon the applicability of Section 132 of the Evidence Act and Section 164 of Cr.P.C. in the present case. It is submitted that even though the petitioner has answered the questions put to him during his cross-examination, the same cannot be used to prosecute him except where the prosecution is for giving false evidence by such answers, as is provided under the proviso to Section 132 of the Evidence Act, 1872.

6] Shri Vyas has also drawn the attention of this Court to S.164(2) of Cr.P.C. which provides that a Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily, whereas, the petitioner was never apprised that the evidence may be used against him. Thus, it is submitted that the non-compliance of the provisions of S.164(2) of Cr.P.C. has rendered the impugned order bad in law. Counsel has also submitted that trial has commenced in the year 2015 andtill date 14 witnesses have been examined and in such circumstances, it was not expedient to allow th