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TMI Blog2020 (8) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused gave cash amount of Rs. 12,500/- to the complainant-respondent and further issued a cheque worth of Rs. 9,00,000/- bearing cheque no. 011734 of ICICI Bank Branch- Raisen dated 20.02.2012. The said cheque was deposited by complainant-respondent in the Bank but the same was returned on 29.02.2012 with an endorsement of insufficiency of funds. Thereafter complainantrespondent issued statutory notice which was received by the petitioner-accused but petitioner-accused did not deposit amount then complainant respondent filed a criminal complaint under Section 138 of Negotiable Instruments Act. Petitioner-accused 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 applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new case. So revisional court has interfered the well reasoned order passed by the trial court. So prima-facie illegality committed by learned revisional court is apparent on the face of record, the impugned order be granted. Learned counsel for petitioner-accused cited the following judgments:- i) Vir Prakash Sharma Vs. Anil Kumar Agarwal and another (2007) SCC 373. ii) Rajendra Rajoriya Vs. Jagat Narain Thapak and another (2018)17 SCC 234. iii) Sarojben Ashwinkumar Shah and others Vs. State of Gujarat and another (2011) 13 SCC 316. iv) Shivcharan VS. Jahid Khan passed in M.Cr.C. No. 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 perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 203 of Cr.P.C may be assailed in a criminal revision under Section 397 of Cr.P.C. The ambit of revisional jurisdiction is well settled. Section 397 of Cr.P.C empowers the Sessions Judge to call for and examine the record of any proceeding before any subordinate criminal court situate within its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such subordinate Court. 13. The extent of the revisionary powers inter 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tu or on an application by someone. (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court. (iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of and was responsible to the firm for the conduct of the business of the firm." 9. In the instant case it is admitted fact that complainant respondent filed criminal complaint under Section 200 & 202 to initiate the proceedings against the petitioner accused under Section 138 read with Section 142 of NI Act. Learned trial court took cognizance under Section 138 of Negotiable Instrument Act against the petitioner accused. Thereafter petitioner accused appeared before the trial court. He adduced his evidence. The statement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Of Criminal Procedure, 1973 245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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