TMI Blog2020 (8) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... que to the present petitioneraccused to cheat the respondent- complainant, so prima facie case is made out under Section 420 of IPC against the petitioner and Section 120-B 420 of IPC against one Santosh Malviya and trial court is directed to take cognizance against the present petitioner and Santosh Malviya according to law. It is not disputed that offence under Section 420 of IPC is maintainable in lieu of pendency of proceeding under Section138 of NI Act. Plea of double jeopardy on the ground that appellant was convicted under Section 138 of NI Act is not tenable - if any offence is committed by the petitioner-accused for IPC then complainant respondent is very competent to initiate separate proceeding under IPC against the petitioner-accused and another. It is clear from the record that complainant respondent-complainant did not allege any fact against Santosh Malviya in his complaint under Section 138 of NI Act and during his evidence before trial court any witness did not allege any fact against Santosh Malviya, so it is not proper to implead Santosh Malviya as an accused under Section 319 of Cr.P.C. If Santosh Malviya is added as an additional accused there would be den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed appeared before the trial court. Both parties adduced evidence. Petitioner-accused also produced Mr. Devesh Nayani- Assistant Manager, I.C.I.C.I. Bank Branch Raisen. He deposed before the trial court that disputed cheque and concerned cheque book was issued by the Bank in favour of one Santosh Malviya, thereafter Santosh Malviya cancelled the cheque. Thereafter, respondent complainant filed an application under Section 216 of Cr.P.C. for framing additional charges against the petitioner-accused under Sections 120-B, 420, 467, 468 and 471 of IPC and also filed an application under Section 319 of Cr.P.C. for impleading Santosh Malviya as an additional accused. Learned trial court dismissed this application and held that complainant-respondent cannot be allowed to construct a new case on the basis of the evidence adduced by the petitioner-accused during the course of trial. There is no evidence on record to give a conclusion that any document has been forged or fabricated. 3. Thereafter, respondent-complainant filed a revision before Additional Sessions Judge, Raisen. Additional Sessions Judge, Raisen allowed the revision presented by the respondentcomplainant and it was held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5130/2019 dated 09.05.2019. 5. Learned counsel counsel for the respondent-complainant submits that revisional court has revisional powers so learned revisional court is very competent and has jurisdiction to pass such order. There is no perversity or illegality in the impugned order so revision be dismissed. In support of his contention learned counsel for respondent-complainant cited the judgment of High Court of Madras in the case of N. Anbarasu Vs. M. Ganesan Lsws (Mad)-2006-11-164 and judgment in the case of Tulsi Ram VS. Phoolwati 2013(4) MPLJ 85. 6. Heard both the parties and perused the record. 7. Firstly it would be appropriate to determine the scope of criminal revision under Section 397 and 398 of Cr.P.C. Hon ble Supreme Court in the case of Rajendra Rajoriya VS. Jagat Narain Thapak and another (2018) 17 SCC 234 has held as under:- 11. At the outset, before we decide the legality of the remand order, we are required to determine the scope of criminal revision under Section 397 read with Section 398 of Cr.P.C. It would be appropriate to reproduce Sections 397 and 398 of Cr.P.C herein. Section 397. Calling for records to exercise powers of revision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter alia, is provided under Section 399 read with Section 401 of Cr.P.C. It is clear from the aforesaid provisions that Section 398 has to be read along with other Sections which are equally applicable to the revision petitions filed before the Sessions Court. Section 398 only deals with a distinct power to direct further inquiry, whereas Section 397 read with Section 399 and Section 401 confers power on the revisionary authority to examine correctness, legality or propriety of any findings, sentence or order. The powers of the revisionary court have to be cumulatively understood in consonance with Sections 398, 399 and 401 of Cr.P.C. 14. We may note that the High Court, in the impugned judgment, came to an erroneous conclusion that the Sessions Court had itself taken cognizance of the matter which may be reproduced as under- On bare perusal of this provision it is clear that the impugned order cannot be passed under Section 398 of the Code. The word may direct has been used by the legislation in this provision. It gives wide discretion to the court to order further enquiry. Sessions Court has no power to take cognizance of the offence, assess the offence and reach i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e during investigation but against whom evidence showing their involvement in the offence comes before the court. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word `evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge- sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it. (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of accused was recorded. Petitioner-accused adduced defence witness. He also produced defence witness Mr. Devesh Nayani- Assistant Manager, I.C.I.C.I. Bank Branch Raisen. He deposed before the trial court that disputed cheque No. 011734 and concerned cheque book was issued by the Bank in favour of one account holder Santosh Malviya. Disputed cheque was dishonoured on three grounds. First ground difference of signature of disputed cheque, second insufficient fund and third disputed cheque already cancelled, then respondent-complainant filed an application under Section 216 of Cr.P.C. for framing additional charges against he petitioner-accused under Sections 120-B, 420, 467, 468 and 471 of IPC and also filed an application under Section 319 of Cr.P.C. for impleading Santosh Malviya as an additional accused. Learned trial court dismissed this application and held that complainant-respondent cannot be allowed to construct a new case on the basis of the evidence adduced by the petitioner-accused during the course of trial. There is no evidence on record to give a conclusion that any document has been forged or fabricated. Thereafter, respondentcomplainant filed a revision before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by such Magistrate, he considers the charge to be groundless. It is evident from the aforesaid sections that before framing of charge complainant respondent will produce all the prosecution evidence and after considering the evidence, trial court is competent to discharge the accused for charges but learned revisional court directed to frame the charge, so prima facie the order of revisional court is erroneous. 11. It is not disputed that offence under Section 420 of IPC is maintainable in lieu of pendency of proceeding under Section138 of NI Act. Plea of double jeopardy on the ground that appellant was convicted under Section 138 of NI Act is not tenable. Hon ble Supreme Court in the case of Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and another (2012) 7 SCC 621 has held as under:- 37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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