Ashok and Others vs State of Maharashtra and Others

S.B. Shukre, J.—Heard. Admit. Heard finally by consent.

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.

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.

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.

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.

Learned APP has submitted that appropriate orders may be passed.

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.

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.

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.

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.