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CR.MA/10185/2006 2/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10185 of 2006
In
CRIMINAL
MISC.APPLICATION No. 10185 of 2006
In
CRIMINAL MISC.APPLICATION No. 10185 of 2006
=========================================================
MANOJ
INDRAVADAN CHOKSI & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
PRAKASH THAKKAR, SR. ADVOCATE FOR MR. PUSHPADATTA VYAS
for Applicant(s) : 1 - 2.
MR HL
JANI, APP for Respondent(s) : 1,
RULE SERVED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 19/03/2009
ORAL
ORDER
The
applicant has preferred this Application for quashing criminal
complaint F.I.R., filed before Bharuch City A Division
Police Station being CR No. I-187 of 2005 against the applicant and
other accused for the offences punishable under Sections 406, 409,
420 and 114 of Indian Penal Code.
Heard
learned Senior Advocate Mr. Prakash Thakkar for the petitioner and
learned APP Mr. Jani, for the respondent State. Remaining
respondent is served, but absent.
It
appears that the original complainant has also filed complaint under
the provision of Section 138 of the Negotiable Instrument Act in the
Court of learned Chief Judicial Magistrate, Bharuch, bearing Criminal
Case Nos.9851 of 2001 and 9852 of 2001, and the process was issued on
8.8.2001. Thereafter the applicant has filed complaint under the
provisions of Indian Penal Code on the same and similar cause of
action.
Learned
Senior Advocate Mr. Thakkar has contended 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 I.P. Code then the
complainant has right to make a request before the learned Judge to
frame charge against the applicant. He has contended that when the
complaint for the offence under Section 138 of Negotiable Instrument
Act is pending before the learned Chief Judicial Magistrate in
connection with same offence, second complaint cannot be filed for
that offence.
Learned
APP Mr. Jani has fairly contended that the complainant has right to
use the provision of Criminal Procedure Code before the trial court
during recording of evidence.
I
have gone through the papers produced before me. The Honourable Apex
Court in the case of G. SAGAR SURI & ANR. V/s. STATE OF U.P. AND
OTHERS, reported in (2000) 2 SCC 636, 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.
In
view of above observation of the Hon’ble Apex Court, the complaint
filed by the complainant under Sections 406 and 409 I.P. Code is
required to be quashed and accordingly the same is quashed. Rule made
absolute accordingly.
(Z.K.SAIYED,J.)
sas
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