Madhya Pradesh High Court
Ashutosh Shrivastava vs The State Of Madhya Pradesh on 12 January, 2018
HIGH COURT OF MADHYA PRADESH, JABALPUR
M.Cr.C. No. 181 of 2014
Parties Name Ashutosh Shrivastava, S/o Shri
Prafulla Kumar Shrivastava,
aged about 40 years, R/o
Housing Board Colony,
Chandangaon, Chhindwara,
District Chhindwara (M.P.)
Vs.
1. State of Madhya Pradesh,
through Police Station Arakshi
Kendra Chhindwara, District
Chhindwara (M.P.)
2. Harish Khandelwal, S/o Shri
Jay Narayan Khandelwal, aged
about 42 years, R/o Near Pooja
Lodge, Parasiya Road,
Chhindwara, District
Chhindwara (M.P.)
3. Ram Khandelwal, S/o Shri
Jay Narayan Khandelawal, aged
about 58 years, R/o Near Pooja
Lodge, Parasiya Road,
Chhindwara, District
Chhindwara (M.P.)
Bench Constituted Hon'ble Shri Justice Anurag
Shrivastava
Judgment delivered by Hon'ble Shri Justice Anurag
Shrivastava
Whether approved for Yes/No
reporting
Name of counsels for For applicant:
parties Shri Alok Nayak, Advocate.
For respondent/State:
Shri Aseem Dixit, Government
-2-
M.Cr.C. No.181/2014
Advocate.
Law laid down
Significant paragraph
numbers
ORDER
(12.01.2018) The present petition under Section 482 of Cr.P.C preferred by the applicant against the order dated 15.12.2012 passed by Judicial Magistrate First Class, District Chhindwara (M.P.) in Criminal Case No.2350/2009 whereby the trial Court has allowed the application moved under Section 321 of Cr.P.C. by Assistant District Prosecution Officer and granted permission to withdraw Criminal Case No.2350/2009 (State Vs. Harish Khandelwal and Ram Khandelwal) registered under Sections 294, 323/34 and 506 of IPC.
2. It is intimated by District & Sessions Chhindawar vide memo dated 05.12.2016 that the record of Criminal Case No.2350/2009 has been eliminated on 19.12.2016.
3. Heard arguments.
4. It is submitted by the applicant that on 07.10.2009 respondents No.2 and 3 came into his Office and after abusing and beating him they forcibly took one blank signed cheque from the applicant. The police registered the offence against the respondents No.2 and 3 and after investigation submitted the charge-sheet before the Court and a Criminal Case No.2350/2009 had been registered and tried for the offence under Sections 294, 323/34 and 506 of IPC. It is further submitted by the -3- M.Cr.C. No.181/2014 applicant that respondents No.2 and 3 had entered the amount of Rs.10 Lacs in the aforesaid cheque and fradulently presented the cheque in the Bank for payment and when cheque got dishonoured they file a criminal complaint under Section 138 of Negotiable Instrument Act against the present applicant.
5. It is further submitted by the learned counsel for the applicant that in the Criminal Case No.2350/2009 the applicant could have demonstrated that the respondents No.2 and 3 had forcibly taken the signed cheque from the applicant, which had been used later on for initiation of criminal proceedings under Section 138 of NI Act. The Magistrate has without giving any intimation or notice to applicant wrongly accorded permission to prosecution for withdrawal of criminal case. The Public Prosecutor has without satisfying himself about the nature of offence wrongly moved the application for withdrawal under Section 321 of Cr.P.C and thereby committed illegality. Therefore, the impugned order dated 15.12.2012 be set- aside and Criminal Case No.2350/2009 be restored for trial.
6. Considering the submission of learned counsel for the applicant and on perusal of the record, it appears that the Criminal Case No.2350/2009 has been instituted under Sections 294, 323/34 and 506 of IPC on report of applicant. The offences are not serious in nature. The prosecution has moved application for withdrawal of this case under direction of the Government under Section 321 of Cr.P.C on 15.12.2012. It is not necessary to hear the complainant before according the permission of -4- M.Cr.C. No.181/2014 withdrawal of prosecution under Section 321 of Cr.P.C. No notice to complainant is contemplated under Section 321 of Cr.P.C. The application has been made after three years of the trial. At present it cannot be presumed that the Prosecutor has been applied for withdrawal without considering the nature of offence and its effect. The record of the criminal case has already been eliminated.
7. In view of aforesaid facts, I do not find any illegality in the impugned order passed by the trial Court according permission to withdraw the case. The applicant can demonstrate the fact before the Court in his defense in the proceedings under Section 138 of NI Act., that he has not given the disputed cheque to respondent and the cheque was forcibly taken from him.
8. Consequently, the present petition is dismissed.
(Anurag Shrivastava) Judge Vin** Digitally signed by VINOD SHARMA Date: 2018.01.14 22:20:47 -08'00'