Madhya Pradesh High Court
Sanjay vs Raghuveer Singh on 6 May, 2019
1 MP No.1589/19
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
MP No.1589/2019
Sanjay S/o Ramprasad Choudhary .... Petitioner
Vs.
Raghuveer Singh S/o Late Babu Santram .... Respondent
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Shri Girish Desai, learned counsel for the petitioner.
Shri Vivek Singh, learned counsel for respondent.
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Whether approved for reporting :
ORDER
(Passed on 6/5/2019) 1/ By this miscellaneous petition under Article 227 of the Constitution the petitioner has challenged the order of the Judicial Magistrate First Class, Indore dated 24.8.2017 accepting the petitioner's application for plea bargaining under Section 265-B of the Cr.P.C. and granting time to the petitioner to pay the amount of Rs.3,80,000/- by 10 th of December, 2018, failing which he was required to suffer six months' imprisonment.
2/ The respondent had filed complaint before the JMFC under Section 138 of the Negotiable Instruments Act with the plea that the petitioner had taken loan of Rs.2 Lakhs from the respondent and had given Cheque No.019257 dated 22.4.2017 for a sum of Rs.2 Lakhs towards the repayment of the loan but when it was presented by the respondent in the Bank for encashment, the Cheque was dishonoured by the Digitally signed by Trilok Singh Savner Date: 07/05/2019 18:20:03 2 MP No.1589/19 Bank with the remark of insufficient fund, therefore, the respondent had given the notice and when the amount was not paid by the petitioner, he had filed the complaint under Section 138 of the NI Act.
3/ The petitioner had appeared before the JMFC on 24.8.2017 and had filed an application under Section 265-B of the Cr.P.C. for plea bargaining. The learned JMFC had accepted the said application and passed the impugned order dated 24.8.2017 directing the petitioner to pay the amount of Rs.3,80,000/- by 10th of December, 2018, failing which he was required to go six months' imprisonment. The petitioner had not paid the said amount, therefore, he has been taken in custody on 8.2.2019.
4/ Learned counsel appearing for the petitioner submits that the court below had not conducted the plea bargaining proceedings in camera and had not ascertained that the application was filed by the petitioner voluntarily as the petitioner was in custody when the application was filed and in this regard he has placed reliance upon the judgment of the Kerala High Court in the matter of P.J. Joseph Vs. State of Kerala and another reported in 2018 Cri.L.J. 1765.
5/ Learned counsel for the respondent has opposed the petition by submitting that the application for plea bargaining was moved by the petitioner voluntarily. The court had duly followed entire procedure and now after delay of one and half years the petitioner has challenged the order without paying the amount. He has further submitted that between the same parties in another case similar order was passed, wherein the petitioner had paid the entire amount.
6/ Having heard the learned counsel for the parties Digitally signed by Trilok Singh Savner Date: 07/05/2019 18:20:03 3 MP No.1589/19 and on perusal of the record, it is noticed that the impugned order was passed on 24.8.2017, whereas the petitioner has filed the present miscellaneous petition on 19.3.2019 after a delay of almost one and half years. The present petition has been filed when the time period for making payment in terms of the order of plea bargaining has expired. No satisfactory explanation for the delay has been furnished by the petitioner.
7/ That apart, the record shows that the procedure which has been prescribed under Section 265-B Cr.P.C. has duly been followed. Section 265-B of the Cr.P.C. reads as under:-
"S. 265B. Application for plea bargaining.-(1)A person accused of an offence may file an application for plea bargaining in the Court in which such offence is pending for trial.
(2) The application under Sub-Section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.
(3) After receiving the application under Sub-
Section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under Sub-Section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where-
(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the Digitally signed by Trilok Singh Savner Date: 07/05/2019 18:20:03 4 MP No.1589/19 complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;
(b)the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under Sub- Section (1)."
8/ The record reflects that the petitioner had appeared on 24.8.2017 and he had filed an application under Section 265B along with the affidavit. The trial court had examined the petitioner in camera to ascertain if the application was filed voluntarily and in the camera proceedings the petitioner had disclosed that the application was filed by him voluntarily. Thereafter further proceedings were taken up and both the parties have given consent. Hence the satisfactory disposition of the case was worked out and then the case was disposed off under Section 265B as per the agreed terms of repayment of Rs.2 Lakhs along with late payment amount of Rs.1,80,000/-, total Rs.3,80,000/- by pay order or DD by 10.12.2018, failing which the petitioner was to undergo six months imprisonment. The entire proceedings which are on record clearly reflect that due procedure which has been prescribed in Chapter 21A of the Cr.P.C. has been followed in the matter. That apart the respondent has placed on record the relevant document in respect of another case under Section 138 of the NI Act between the same parties, wherein the order on the basis of Digitally signed by Trilok Singh Savner Date: 07/05/2019 18:20:03 5 MP No.1589/19 plea bargaining was passed by the JMFC and the said order has duly been honoured by the petitioner.
9/ So far as the judgment in the matter of P.J. Joseph (supra) relied upon by counsel for the petitioner is concerned, the said judgment requires the trial court to ensure that the accused pleaded guilty, knowing fully about consequences and the examination of the accused should be in camera. In the present case the said requirement has duly been complied with.
10/ Having regard to the above, I am of the opinion that the impugned order does not suffer from any error and no case for interference is made out. The miscellaneous petition is accordingly dismissed.
(PRAKASH SHRIVASTAVA) Judge Trilok.
Digitally signed by Trilok Singh Savner Date: 07/05/2019 18:20:03