Tuesday, 14 April 2015

Whether Criminal prosecution is tenable if complainant has failed to file complaint for cheque dishonour?



 It   is   noted   that   the   petitioner   is   a   School 
Teacher and is not a illiterate person.   It is also noted that the 
petitioner   did   not   take   any   steps   to   file   a   Criminal   Complaint 
against   Respondent   No.1   under   Section   138   of   the   Negotiable 
Instruments   Act   when   the   cheque   issued   by   Respondent   was 
dishonoured.   It, therefore, appears to me that the petitioner has 
to recover the money.
adopted the criminal proceedings against Respondent Nos. 1 & 2 
In my opinion, considering the facts of the case, dispute 
between the petitioner and Respondent  Nos.  1 & 2 is purely of 
civil   nature   and   this   complaint   appears   to   be   manipulated 
complaint.  The Complaint has been rightly dismissed by the trial 
Court and Revision has also been rightly rejected by the Revisional 
Court. 

CRIMINAL WRIT PETITION  NO.  566  OF  2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH

Shri Yadavrao  Lataru Sonewane,  Shri Bhojraj s/o Ramnath Barewar,

CORAM : M.L. TAHALIYANI, J.
NOVEMBER 20, 2014.
Citation;2015 ALLMR(CRI)1093




The   petitioner   has   filed   a   Criminal   Complaint   in   the 
4.
Court of Judicial Magistrate First Class, Gondia, Court No. 5, vide 
Criminal Complaint Case No. 441 of 2009.  Respondent No. 1 is a 
relative   of   the   petitioner.     Respondent   No.   2   was   working   as  a 
Branch   Manager   of   Gondia   District   Central   Co­operative   Bank, 
Goregoan.  It is alleged in the complaint that Respondent No. 1 in 
collusion   with   Respondent   No.   2   took   some   signatures   of   the 
petitioner   on   blank   forms   and   obtained   loan   from   the   Bank. 
However, the amount, in fact, was delivered to Respondent No. 1. 
During   the   course   of   arguments,   it   was   submitted   that   the 
petitioner had agreed to give Rs. One lakh to Respondent No. 1 

after   obtaining   loan   from   the   Bank.     However,   after   making 
certain   manipulations   in   the   document,   the   loan   amount   was 
increased to Rs.2,15,000/­ and whole amount was taken away by 
Respondent No. 1 with the assistance of Respondent No. 2.
5.
The learned Magistrate, after recording the statement of 
the   complainant,   has   sent   the   complaint   for   inquiry   and   report 

under Section 202 of the Code of Criminal Procedure.  The police 
submitted the report that the petitioner had voluntarily given loan 
amount   to   Respondent   No.   1   and,   therefore,   the   amount   was 
handed over to Respondent No. 1.  Respondent No. 1 was unable 
to   pay   the   amount   and,   therefore,   he   had   issued   a   cheque   of 
Rs.2,50,000/­ to the petitioner.  The said cheque was not honored 
by the bankers of Respondent No. 1.
6.
The learned counsel submitted that the amount actually 
agreed to be paid to Respondent No. 1 was Rs. One lakh and that 
the manipulation was done by Respondent Nos. 1 & 2 to withdraw 
the amount of Rs.2,15,000/­.
7.
This   does   not   appear   to   be   correct   from   the   police 

inquiry   and   report.     It   is   noted   that   the   petitioner   is   a   School 
Teacher and is not a illiterate person.   It is also noted that the 
petitioner   did   not   take   any   steps   to   file   a   Criminal   Complaint 
against   Respondent   No.1   under   Section   138   of   the   Negotiable 
Instruments   Act   when   the   cheque   issued   by   Respondent   was 
dishonoured.   It, therefore, appears to me that the petitioner has 
6.
to recover the money.
adopted the criminal proceedings against Respondent Nos. 1 & 2 
In my opinion, considering the facts of the case, dispute 
between the petitioner and Respondent  Nos.  1 & 2 is purely of 
civil   nature   and   this   complaint   appears   to   be   manipulated 
complaint.  The Complaint has been rightly dismissed by the trial 
Court and Revision has also been rightly rejected by the Revisional 
Court.  Therefore, I do not find any substance in the petition.  The 
present   Criminal   Writ   Petition   stands   dismissed.     Rule   stands 
discharged.
     JUDGE


Print Page

No comments:

Post a Comment