Wednesday, 20 January 2016

Whether process can be issued against complainant of case of dishonour of cheque on the basis of defence of accused of that case?

 Learned counsel for respondent no. 2 has pointed out to
me observations of the learned Magistrate while acquitting respondent

no. 2 of the offence punishable under Section 138 of Negotiable
Instruments Act and in order to support his argument that there was
something available on record which would warrant full-fledged trial of
the applicants. In the proceedings initiated under Section 138 of
Negotiable Instruments Act against respondent no. 2 by the applicants,
the learned Magistrate on merits of the case found that disputed
cheques did not bear signatures of the accused, i.e. respondent no. 2,
and the defence of respondent no. 2/accused that the disputed cheques
were stolen by the applicants was acceptable. These observations
relate to probabilising of the defence of the accused in that case, who
is respondent no. 2 in the present case and, therefore, it would have no
abiding effect on the merits of this case. Standard of proof for
accepting defence of accused in a criminal case is different than what is
required for proving an offence. Defence is accepted or rejected on the
law of probabilities. Offence is proved on the law of proof beyond
reasonable doubt. It means acceptance of an averment taken in
defence may not always lead to a conclusion that it is proved and would
only suggest that it is possible and hence creating doubt in prosecution
story. As such, said observations cannot be considered for examining
sufficiency of grounds to proceed further in a criminal prosecution
launched against the applicants. In the present case, respondent no. 2
would be required to stand on his own strength showing existence of
sufficient material for proceeding further against the applicants, which,

in my opinion, the respondent no. 2 has not done successfully.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
 CRIMINAL APPLICATION (apl) No. 627 OF 2013 WITH
CRIMINAL APPLICATION No. 628 OF 2013
(1) Crim. Appln. No. 627/13
 Ashok s/o Kishorilal Banarsi,

         VERSUS
State of Maharashtra,

    CORAM  :      S.B. SHUKRE,     J.     
DATED  :  24.02. 2015.
Citation; 2015 ALLMR(CRI)4901

Heard. Admit. Heard finally by consent.

2. By these applications, the applicants are challenging the
order issuing process for the offences punishable under Sections 381,
468, 469 and 471 read with Section 34 of Indian Penal Code passed by
the learned Additional Chief Judicial Magistrate, Nagpur, on 22.8.2013.
3. The gist of the allegations against the applicants are that
applicant no. 1, while working as an employee of the firm of respondent
no. 2, stole cheque-book containing blank cheques of respondent no.2
and after resigning from his job, the applicant no. 1, in collusion with
rest of the applicants, misused those blank cheques. It has been
alleged that these applicants, in furtherance of their common intention,
showed that those cheques, though were never issued by respondent
no. 2 in their favour, misused them for obtaining wrongful gain.
Initially, the F.I.R. was lodged by respondent no. 2 with police station
Dhantoli. It was, however, registered as a non-cognizable case and,
therefore, no investigation was carried out. Later on, respondent no. 2
filed a criminal complaint before J.M.F.C. and report of Investigating
Officer under Section 156(3) of Code of Criminal procedure was called.
After receipt of the report, and after considering the documents filed
along with the complaint, the learned Additional Chief Judicial
Magistrate found that as disputed cheques did not bear signatures of
the complainant, i.e. respondent no. 2, the offences alleged against the
applicants were made out and accordingly by the order dated 22.8.2013
the learned Magistrate issued process against these applicants for the

offences stated earlier. Not satisfied with the same, the applicants are
before this Court in these applications filed under Section 482 of the
Code of Criminal Procedure.
4. According to learned counsel for the applicants, at the
time of filing of the complaint, photo-copies of five disputed cheques
were filed by the complainant, i.e. respondent no. 2, and no
explanation had been given by respondent no. 2 as to how respondent
no. 2 came in possession of photo-copies of those five disputed
cheques. This submission was not at all considered by the learned
Magistrate, which resulted in passing of an illegal order for issuance of
process.
5. Learned counsel for respondent no. 2 submits that even
though the explanation has not come on record, some explanation has
been given by the complainant during the pendency of these
applications and, therefore, at the initial stage the case should not be
thrown out of the Court.
6. Learned APP has submitted that appropriate orders may
be passed.
7. I would have accepted the argument of learned counsel
for respondent no. 2, had there been some explanation about
respondent no. 2 having been in possession of those disputed cheques,
numbering five, at the time when he filed the complaint. The whole
case revolves around stealing of blank cheque leaves by applicant no. 1

and misusing them for benefit of himself and rest of the applicants and,
therefore, it was necessary for respondent no. 2 to have given some
explanation as to how he came into possession of those five disputed
cheques at the time of filing of the complaint. If he has not given any
explanation about the same, it would have to be inferred that the
cheques were not stolen by applicant no.1, as alleged by respondent
no.2 and were indeed issued by respondent no. 2 in favour of the
applicants 2 to 5, and while drawing these cheques in favour of the
applicants, respondent no. 2 had taken out photo-copies of the same for
the sake of his record. If any explanation has been given by respondent
no. 2 during the pendency of these applications, which explanation is
that applicant no. 1 himself had taken out photo-copies of the disputed
cheques after carrying out the forgery and kept them in the drawer of
the table occupied by him while he was working as an employee of
respondent no. 2, it is nothing but a product of afterthought on the
part of respondent no. 2 and seeing that the case is devoid of any
merit, respondent no. 2 is now trying to fill up the lacuna in the case
which is not permissible. Therefore, whatever explanation is given by
respondent no. 2 at such a belated stage cannot be taken into account
so as to say that respondent no. 2 should be given further opportunity
to explain his case against the applicants.
8. Learned counsel for respondent no. 2 has pointed out to
me observations of the learned Magistrate while acquitting respondent

no. 2 of the offence punishable under Section 138 of Negotiable
Instruments Act and in order to support his argument that there was
something available on record which would warrant full-fledged trial of
the applicants. In the proceedings initiated under Section 138 of
Negotiable Instruments Act against respondent no. 2 by the applicants,
the learned Magistrate on merits of the case found that disputed
cheques did not bear signatures of the accused, i.e. respondent no. 2,
and the defence of respondent no. 2/accused that the disputed cheques
were stolen by the applicants was acceptable. These observations
relate to probabilising of the defence of the accused in that case, who
is respondent no. 2 in the present case and, therefore, it would have no
abiding effect on the merits of this case. Standard of proof for
accepting defence of accused in a criminal case is different than what is
required for proving an offence. Defence is accepted or rejected on the
law of probabilities. Offence is proved on the law of proof beyond
reasonable doubt. It means acceptance of an averment taken in
defence may not always lead to a conclusion that it is proved and would
only suggest that it is possible and hence creating doubt in prosecution
story. As such, said observations cannot be considered for examining
sufficiency of grounds to proceed further in a criminal prosecution
launched against the applicants. In the present case, respondent no. 2
would be required to stand on his own strength showing existence of
sufficient material for proceeding further against the applicants, which,

in my opinion, the respondent no. 2 has not done successfully.
9. The above referred aspects of the case have not at all
been considered by the learned Magistrate before ordering issuance of
process. It was incumbent upon the learned Magistrate to examine as
to how respondent no. 2 was in possession of photo-copies of the
disputed cheques and what was the reason for the same. In fact, there
was no explanation given for it by respondent no. 2 and, therefore, the
learned Magistrate ought to have held that no case for proceeding
further in the matter had been made out by respondent no. 2.
Impugned orders passed by the learned Magistrate are, therefore,
illegal and deserve to be quashed and set aside. There is nothing in the
complaints filed by respondent no. 2 as against the applicants so as to
enable the trial Court to proceed further in the matter. The
proceedings, therefore, deserve to be quashed and set aside.
10. In the result, both the applications are allowed.
Impugned orders of issuance of process are hereby quashed and set
aside. The proceedings in Criminal Complaint Case Nos. 1354/11 and
1355/11 are hereby quashed and set aside. Both the applications stand
disposed of in these terms.

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