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CR.MA/2641/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2641 of 2011
=========================================================
BHARAT
N KAYASTH - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
PUSHPADATTA VYAS for
Applicant(s) : 1,
Ms.C.M.Shah, APP for Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 21/04/2011
ORAL
ORDER
This
application is filed by the applicant to quash the FIR bearing
C.R.No.I-192 of 2005 filed with the Bharuch City A Division Police
Station, Bharuch against the applicant and other accused for the
offences punishable under Sections 406, 409, 420 and 114 of Indian
Penal Code.
Learned
advocate Mr.Vyas submits that for the same transaction, one criminal
complaint being Criminal Case No.9319 of 2001 came to be filed by the
Punjab National Bank in the Court of learned Chief Judicial
Magistrate, Bharuch for the offence punishable under Section 138 of
Negotiable Instruments Act which is pending. He further submits that
there is a provision in Criminal Procedure Code that during
production of evidence before the learned Judge if there may be some
offence in connection with the offence under Sections 406, 409 etc.
of Indian Penal Code then the complainant has right to make a request
before the learned Judge to frame charge against the applicant. He
further submits that when the complaint for the offence under Section
138 of Negotiable Instruments Act is pending before the learned Chief
Judicial Magistrate in connection with same offence, second complaint
cannot be filed for that offence and therefore the same is required
to be quashed. Learned advocate for the applicant placed reliance on
the decision in the case of G.Sagar Suri & Anr. V/s State of U.P.
and others reported in (2000)2 SCC 636.
Learned
advocate Mr.Sevak appearing for the respondent no.2-bank submits that
it is shown in the charge sheet that the complaint is forged by the
present applicant and therefore prima facie offences under Sections
406, 420 etc. of Indian Penal Code are made out and that the present
applicant is shown as absconding.
In
the case of G.Sagar Suri (supra), the Honourable Supreme Court has
observed as under:
“A
criminal complaint under Section 138 of the Negotiable Instruments
Act is already pending against the appellants and other accused. They
would suffer the consequences if offence under Section 138 is proved
against them. In any case there is no occasion for the complainant to
prosecute the appellants under sections 406/420 IPC and in his doing
so it is clearly an abuse of the process of law and prosecution
against the appellants for those offences is liable to be quashed.
Accordingly, the judgment of the High Court is set aside and
prosecution of the appellants under Section 406/420 IPC is quashed.”
Considering
the judgment referred hereinabove and the facts as well as
submissions made by the learned advocates for the respective parties,
this application is allowed. The FIR being CR No.I-192 of 2005 filed
with the Bharuch City A Division Police Station, Bharuch by the
original complainant-respondent no.2 herein is hereby quashed and set
aside.
Direct
service is permitted.
(
M.D.Shah, J )
srilatha
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