VIJAY NAMDEORAO BIDWALKAR Vs. RAMAVATAR MADANLAL AGRAWAL

JUDGEMENT

(1.) THE applicant had filed a complaint against non-applicant No. 1 for offences under sections 406, 417/420, I. P. C. and section 142 of the Negotiable Instruments Act (hereinafter called the said Act ). The Magistrate issued process after examining the complaint under section 200 Cri. P. C. The process was issued under sections 406, 417, 420 I. P. C. and section 138 of the Negotiable Instruments Act vide order dated 26-12-1989. The non-applicant No. 1 challenged this issue of process by filing Criminal Revision No. 74/1990, before this Court, and this Court vide order dated 13-9-1990, dismissed the said revision. Thereafter, the applicant examined himself before charge and vide order dated 12-7-1995, the J. M. F. C. , Gondia, ordered framing of charge against the non-applicant No. 1, under sections 406, 417, 420 I. P. C. read with section 138 of the Negotiable Instruments Act. This order of the Magistrate was challenged by non-applicant No. 1 before the Sessions Court and the learned Additional Sessions Judge, Bhandara, vide order dated 5-1-1996, allowed the revision and discharged the non-applicant No. 1 under section 245 Cri. P. C. This order is subject matter of challenge in this revision.

(2.) THE non-applicant No. 1 was duly served but no one has appeared on his behalf today when the arguments were heard. Learned Advocate for the applicant and learned A. P. P. for non-applicant No. 2 were heard.

(3.) LEARNED Advocate for the applicant took me through the record and gave the background of the case, including the defence version that the cheque book containing some blank cheques with signatures of non-applicant No. 1 had been stolen, in respect of which a complaint was filed with the police, but nothing materialized in the said complaint, as also that the non-applicant No. 1 had published a notice in the newspapers on 4-9-1989. He pointed out that the respondent No. 1 in reply dated 22-9-1989 to the notice as also in the revision memo in ground 10 had admitted his liability to pay, but that the dispute was restricted to extent of liability. Accordingly to him, the evidence of the applicant was not shaken during cross-examination and the statutory presumption under section 139 of the said Act is sufficient to frame charge against non-applicant No. 1, but, the learned Additional Sessions Judge, took erroneous view of the provisions of section 245 Cri. P. C. , while stating that at the stage of framing of charge, it has to be seen that there is definite conclusion that the case would end in conviction or that the evidence is sufficient to convict the accused. He also urged that the learned Additional Sessions Judge, erred in coming to the conclusion there was no direct evidence to prove that the cheque was given by non-applicant No. 1 to the applicant, since the cheque in question has been brought by one Arun Kokane, who was not examined. According to learned Advocate for the applicant, the learned Additional Sessions Judge, also erred in coming to the conclusion on the basis of evidence on record that the presumption under section 139 of the said Act had been successfully rebutted by preponderance of probabilities by non-applicant No. 1. After placing reliance on a number of authorities, learned Advocate for the applicant urged that the order of the learned Additional Sessions Judge discharging non-applicant No. 1 cannot be sustained and the same be set aside. I shall refer to these rulings in the next paragraph. Learned A. P. P. , supports the learned Advocate for the applicant and submits that the order of discharge is liable to be set aside in the light of evidence on record as also law on the subject. On the question that the learned Additional Sessions Judge had taken a erroneous view of section 245 Cri. P. C. learned Advocate for applicant has placed reliance on (State of Maharashtra v. Priya Sharan Maharaj and others), 1997 Bom. C. R. (Cri.) (S. C.)807 : A. I. R. 1997 S. C. 2041, which in turn relies upon the earlier Apex Court judgment in (Niranjan Singh Punjabi v. Jitendra Bijjaya), A. I. R. 1990 S. C. 1962. The Apex Court in State of Maharashtra v. Priya Sharan Maharaj and others, 1997 Bom. C. R. (Cri.) (S. C.)807 (supra), has laid down:-