9911796707
|
Home
Issues Involved:
1. Whether a person can be arraigned as an accused u/s 319 of the Code of Criminal Procedure in a complaint for the offence u/s 138 of the Negotiable Instruments Act without being served statutory notice. Summary: Issue 1: Arraignment of Accused u/s 319 of CrPC without Statutory Notice u/s 138 of NI Act 1.00. Present petition under Article 226 of the Constitution of India has been preferred by the petitioner herein - original accused to quash and set aside the impugned judgement and order dtd.11/1/2008 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.5, Junagadh in Criminal Revision Application No.85 of 2007, by which the learned revisional court has allowed the said Revision Application preferred by the respondent No.2 herein - original complainant and has quashed and set aside the order passed by the learned Judicial Magistrate (First Class), Junagadh below application Ex.51 in Criminal Case No.3789 of 2005 and thereby directing the petitioner to be joined as accused in the said complaint for the offence under section 138 of Negotiable Instruments Act, in exercise of the powers under section 319 of the Code of Criminal Procedure. 2.00. Facts leading to the present petition in nutshell are as under :- 2.01. That the respondent No.2 herein - original complainant has filed the complaint being Criminal Case No.3789 of 2005 against one Umesh Sarjivan Jain in the court of learned Judicial Magistrate (First Class), Junagadh for the offence punishable under section 138 of the Negotiable Instruments Act for dishonour of the cheque No.55987 dtd.6/10/2005 for an amount of Rs.1 Lac, drawn by Jain Electronics, a Proprietorship Firm, alleged to have been signed by the petitioner herein - Somesh Jain. That in the said complaint initially the learned Magistrate directed to issue Summons against the said Umesh Jain for the offence punishable under section 138 of the Negotiable Instruments Act. That thereafter trial proceeded further and plea of the accused was recorded, who pleaded not guilty and thereafter evidence of the original complainant was recorded and even thereafter evidence of both the sides were recorded and thereafter the evidence of the original complainant was closed. That during the cross-examination of the accused Umesh Jain, it was submitted by him that the dishonoured cheque has not been signed by him and that he is not the proprietor of the Jain Electronics and the said cheque is signed by petitioner herein - Somesh Jain. That thereafter the original complainant submitted application Ex.51 before the learned trial court under section 319 of the Code of Criminal Procedure and requested to join petitioner herein as accused by submitting that it has come on record from the deposition of original accused - Umesh Jain that petitioner is the proprietor of Jain Electronics who has issued the cheque and the said cheque is signed by the petitioner and not original accused - Umesh Jain. That the said application came to be dismissed by the learned Magistrate by holding that as the petitioner who was sought to be joined as accused, was not served with notice under section 138(B) and (C) of the Negotiable Instruments Act, he cannot be arraigned as accused in exercise of the powers under section 319 of the Code of Criminal Procedure. Being aggrieved by and dissatisfied with the order passed by the Judicial Magistrate (First Class), Junagadh below application Ex.51 in Criminal Case No. 3789 of 2005 in dismissing the said application submitted by the original complainant to arraign the petitioner as accused, respondent No.2 - original complainant preferred Revision Application No. 85 of 2007 before the learned Sessions Court, Junagadh and the learned Additional Sessions Judge and Presiding Officer, FTC No.5, Junagadh by the impugned judgement and order dtd.11/1/2008 allowed the said Revision Application and has quashed and set aside the order passed by the learned Judicial Magistrate (First Class), Junagadh below Ex.51 in Criminal Case No. 3789 of 2005 and has allowed the application Ex.5 submitted by the original complainant by directing to arraign the petitioner as accused in exercise of the powers under section 319 of the Code of Criminal Procedure. Being aggrieved by and dissatisfied with the judgement and order passed by the learned revisional court in Revision Application No. 85 of 2007, petitioner herein, who is ordered to be arraigned as accused subsequently in exercise of the powers under section 319 of the Code of Criminal Procedure, has preferred the present petition under Article 226/227 of the Constitution of India read
|
