SHAILENDRA DUBEY Vs. DINESH

JUDGEMENT

(1.) This M.Cr.C. has been filed under Section 378(4) of the Cr.P.C. for grant of leave to file appeal. The applicant is aggrieved by the order dated 23.02.2011 passed by the Judicial Magistrate Class-I Dhar in criminal Case No.638/2009, dismissing the complaint of the petitioner filed under Section 138 of Negotiable Instrument Act. The petition is barred by 409 days and the proper application has been moved by Counsel for the petitioner vide I.A. No.3308/2012.

(2.) Brief facts of the prosecution case are that accused respondent No.1 Dinesh Mehta was known to the complainant Shailendra Dubey and due to personal need had borrowed for a sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand Only) from the complainant and in return had issued cheque bearing No. S.B/07-A/393134 dated 01.01.2009 to the complainant. On presentation in the bank, it was returned with remark insufficiency of funds and complainant had duly sent notice through his Counsel by Registered A.D. & Madhur courier. The accused failed to pay the said amount within the stipulated time hence the complainant, filed the complaint before the Judicial Magistrate. On trial, the Trial Court dismissed the complaint, of the complainant on the ground that the cheque was not issued for any legal loan and signatures of the accused were not proved and there were material contradictions in the statements of the complainant and witness Chanchal. The execution of the cheque itself was disbelieved and notices were suspicious and the accused was acquitted. Being aggrieved the petitioner filed an appeal u/S. 372 (2) of Cr.P.C. of the amended proviso of the criminal procedure got appeal registered at No.58/11 by the Sessions Judge, Dhar.

(3.) However during the pendency of the appeal placing reliance on Dharmveer Singh Tomar v. Ramrajsingh Tomar, 2011 ILR(MP) 1085 the Appellate Court dismissed the appeal on the ground of maintainability of the appeal and the petitioner filed Criminal Revision No.803/11 before the High Court. Unfortunately, during the pendency of the criminal revision this High Court in the matter of Sheikh Taj Mansoori v. Sheikh Riyaz, 2011 3 MPWN 122 held that the proviso of S.372 of the Cr.P.C. would not be applicable and the remedy of appeal under the said section was provided only to the "victim" and the complainant would not be a victim and would have to seek leave u/S. 378(4) of Cr.P.C. The Court held that :