KAUMUDIBEN HARSHADBHAI JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (the Code), the applicant has challenged order dated 23rd June, 2004 passed by the learned Sessions Judge, Surat, in Criminal Revision Application No.17 of 2004 and prays that the order dated 03rd January, 2004 passed by the learned Magistrate in Private Criminal Case No.6 of 2004 be confirmed.

(2.) The facts of the case stated briefly are that the complainant, the respondent No.2 herein, lodged a complaint in the Court of the learned Judicial Magistrate First Class, Surat against the applicants herein alleging commission of the offence punishable under Sections 34, 114, 403, 406 and 420 of the Indian Penal Code on 3rd January, 2004 which came to be registered as Criminal Case No.6 of 2004. The learned Magistrate, after examining the complainant on oath, found that the dispute between the complainant, the accused and the Bank is purely of a civil nature and accordingly dismissed the complaint in exercise of powers under Section 203 of the Code. Being aggrieved, the complainant preferred a revision application before the learned Sessions Judge, Surat, who vide the impugned order dated 23rd June, 2004 allowed the revision application and remanded the matter to the learned Joint Civil Judge (J.D.) and Judicial Magistrate First Class, Surat with a direction to issue process against the accused and decide the complaint in accordance with law. Being aggrieved, the applicants have moved the present revision application challenging the said order passed by the learned Sessions Judge.

(3.) Mr. K.B. Anandjiwala, learned Advocate for Mr. U.M. Panchal, learned Advocate for the applicants invited attention to the allegations made in the complaint to point out that no offence as alleged can be stated to have been made out on the basis of the averments made in the complaint. Referring to the impugned order made by the learned Judicial Magistrate, it was submitted that upon examining the complainant on oath, it is apparent that no offence as alleged had been made out and as such, the learned Judicial Magistrate having found that the dispute involved was purely civil in nature, was justified in dismissing the complaint under Section 203 of the Code. It was submitted that in the circumstances, the learned Sessions Judge was not justified in interfering with the discretion exercised by the learned Judicial Magistrate and directing issuance of process against the applicants herein. On the merits of the case, it was submitted that the applicants had hypothecated the machinery and the goods to the Panchsheel Co -operative Bank and had sold the same after obtaining the permission of the Bank and as such, no offence under Section 420 of the Indian Penal Code can be said to have been made. It was submitted that there was no entrustment of property by the Bank so as to attract the provisions of Section 406 IPC. According to the learned Advocate, if the applicants had used the amount received upon sale of hypothecated machinery and goods and not deposited the same with the Bank, it was the Bank which would be the aggrieved party. The respondent No.2 - complainant who had only stood as a guarantor cannot be said to be an aggrieved party. It was further submitted that the complaint in question has been filed with an oblique purpose and that despite the fact that the son of the complainant was a partner of the firm, he is not impleaded as an accused.