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SCR.A/100119/1998 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1001 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
VASUDEV
CHANDULAL KACHHIYA - Applicant(s)
Versus
STATE
OF GUJARAT & 6 - Respondent(s)
=========================================================
Appearance :
MS
ABHA MAKWANA for MR RAMNANDAN SINGH for Applicant,
MS MANISHA L
SHAH APP for Respondent(s) : 1,
MR EE SAIYED for Respondent(s) : 2
- 7.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 05/02/2009
ORAL
JUDGMENT
This
petition under Article 227 of the Constitution of India read with
Section 482 of the Code of Criminal Procedure, 1973 (for short the
Code ) is preferred by the petitioner with the following main
prayers :-
(B) Your
Lordships may be pleased to issue writ of certiorari or any other
appropriate writ holding the order below Annexure A and Annexure C
passed by Honourable Session Court, Nadiad and Learned JMFC Petlad
respectively as illegal and unlawful and be pleased further to quash
and set aside the aforesaid orders.
(C)
Your Lordships may be pleased to direct the learned JMFC, Petlad to
hold fresh trial in complaint No.813 of 91 of by taking expert’s
evidence for before passing fresh order for framing of the charge
against the accused .
It
is the case of the petitioner that the petitioner preferred a
private complaint, which was registered as Criminal Case No.83/91
and on 25.03.1991 the learned JMFC, Petlad issued the process.
Against the issuance of process, a revision application was
preferred being Criminal Revision Application No.20/93, which came
to be rejected on 12.07.1993 and against which Misc. Criminal
Application No.3827/93 was preferred before this court for quashing
the complaint under Section 482 of the Code, which also came to be
rejected on 08.09.1993 holding that while exercising powers by the
Magistrate of issuance of process, no illegality was committed.
However, by an order dated 26.04.1994 learned JMFC discharged the
accused in the Criminal Case No.813/91 for the offences alleged to
have been committed under Sections 406, 464 and 114 of the Indian
Penal Code.
Being
aggrieved by the order of discharge in exercise of powers under
Section 245(2) of the Code, Criminal Revision Application No.108/94
was preferred by the original complainant and by judgment and order
dated 19.08.1996 the learned Sessions Judge, Nadiad confirmed the
order of learned JMFC in discharging the accused, since according to
learned Sessions Judge no illegality was committed by the Magistrate
in exercise of of powers under Section 245(2) of the Code. However,
this petition is preferred after 2 years of passing the above order
by the learned Additional Sessions Judge, Nadiad and for which delay
is explained.
Learned
counsel for the petitioner-original complainant has raised threefold
grievances to challenge the judgment and order passed by the courts
below viz. (i) that both the courts below failed to appreciate
evidence on record in correct perspective and in spite of the
relevant material was produced, the same was not examined and it has
resulted into miscarriage of justice; (ii) the transaction with
regard to deposit of money was with members of the family and,
therefore, immediately no action was taken but when it was found
that respondents herein have committed offence under Sections 406
and 464 of the Indian Penal Code, complaint was filed; and (iii)
that the learned JMFC has made no efforts to find out correctness of
the allegations by referring the matter to the hand writing expert
to find out the correctness or otherwise of the signature in the
pass-book given by the respondents.
In
view of the above, it is submitted that orders passed by the courts
below deserve to be quashed and set aside.
Having
heard learned counsel for the petitioner and considering the facts
and circumstances of the case, what transpires is that initially for
the offences committed under Sections 406, 464 and 114 of the Indian
Penal Code private complaint was registered with JMFC, Petlad on the
ground that mother of the petitioner-Smt.Jasoda Chandubhai Kachhiya
was widow and was unable to manage the transactions and on her
behalf the petitioner and one of the brothers of the petitioner viz.
Shri Krishnadas resident of Vadodara and accused Nos.1 to 4 are the
partners of firm M/s.Shankarlal Ashabhai Shroff and accused No.5 is
a Clerk and No.6 is the Manager. The petitioner complainant has
close relationship with the accused No.1, since he is son of
maternal uncle of the complaint and accused No.2 is nephew of mother
of the petitioner and accused No.3 is sister-in-law (bhabhi-mother
of the complainant). Thus, the petitioner was assured about fact
that if the money is to be deposited in the above firm the same will
be safe and, therefore, Rs.65,000/- were deposited by his mother,
the complainant deposited Rs.12,700/- and his brother deposited
Rs.13,300/-. In December, 1988 the petitioner was told by the
accused Nos.1, 5 and 6 that all the receipts of the deposits were
handed over but after the end of December when the petitioner
demanded the receipts, they were not returned but cheque books were
given to the petitioner without any signature of the accused.
Since, the petitioner threatened to lodge a complaint they had
signed three cheques and, therefore, subsequently it was found that
in the books of accounts the accused have interpolated and made
incorrect page number in the ledger book and thus committed the
above offences.
The
Trial Court examined the evidence produced before it and found that
in the cross-examination at Exh.37 the complainant and the
petitioner herein in terms admitted that on the same day two
complaints were filed with an intention to receive money
immediately. Not only that but on examination of the evidence, the
learned Magistrate found that amount was no doubt deposited and no
ingredients of cheating, as required to establish charge under
Section 406 and allegations with regard to forgery etc. of preparing
false documents for attracting Section 464 of the IPC were not
supported by evidence. There was nothing on record to compare with
the original writing or the record and just because passbooks were
signed by the accused No.1 it was not possible to believe that
document was forged. The learned JMFC discussed the law at length
with regard to cognizance under Section 190 of the Code and found
that even prima facie case was not made out to frame the charges.
Besides, entrusting of property may have been established but at the
same time there was nothing on recored to indicate criminal breach
of trust and the transaction was found to be of civil nature and,
therefore, power under Section 245(2) of the Code of Criminal
Procedure, 1973 was exercised deciding the case.
Learned
Sessions Judge also closely scrutinized the above aspects and
noticed that appreciation of evidence on the record by the learned
JMFC in the context of ingredients of Sections 406 and 464 of the
Indian Penal Code even prima facie it was not established after
considering Exhs.37 and 45 by which deposition of complainant Shri
Vasudev Kachhiya and deposition of his brother and witnesses Shri
Krishnadas was recorded. The only purpose according to the courts
below for filing such private complaint is to settle the dispute
which was a civil nature and considering the notice dated 19.02.1991
given by mother of the petitioner, the revision application was also
rejected by confirming the order.
In
view of the above, the contentions of the learned counsel for the
petitioner about not appreciating the evidence in correct
perspective by the learned Magistrate, which was confirmed by the
learned Additional Sessions Judge while exercising revisional powers
cannot be accepted since even prima facie case was not made out.
Both the courts have considered the records of the case and
deposition of the complainant as well as witnesses and found that no
ingredients of criminal breach of trust or forgery was found and,
therefore, the order passed by the learned JMFC discharging the
accused, which was confirmed by the learned Additional Sessions
Judge, Nadiad while exercising revisional powers, do not deserve any
interference of this Court in exercise of powers under Article 227
of the Constitution of India read with Section 482 of the Code of
Criminal Procedure since no error of law much less jurisdictional
error is found.
In
view of the above discussion, this petition fails and is hereby
dismissed.
Rule
discharged.
(ANANT S. DAVE, J.)
*pvv
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