1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1231 of 2007 Date of decision: 11/9/2009 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see Yes/No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? Yes/No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Yes/No. Civil Judges ? 6. Whether the case involves an important Yes/No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/1231-07crapl 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1231 of 2007 1. Sopan Bhika Patil, Age 36 yrs, Occ: Govt.servant, r/o Bombay Dyeing, AA-1, Ring Road, City, Tq. & Dist. Jalgaon. 2. Hansraj Padmasingh Hazari, Age 40 yrs, Occ: Govt.servant, r/o. Shiv Colony, City, Tq. & Dist: Jalgaon. ...PETITIONERS VERSUS 1. The State of Maharashtra. 2. Rajendra Ramdhan Pawar, Age 37, Occ. Cutting saloon, Vyanktesh Nagar, Plot No.60, Hari Vittal Nagar, City, tq. & Dist. Jalgaon. ( No.2 - Amended as per Hon'ble Courts order dt.24.4.2007) ...RESPONDENTS ... Mr. Prasanna N.Kutti, Adv.,for the applicant. Mr. A.K.Chitnis, Adv., h/f Mr. Amol Gandhi, Adv., for respondent no.2. Mr. S.G.Nandedkar, APP for respondent no. 1/State. ... 3 CORAM : K.U.CHANDIWAL, J. DATE : 11/9/2009 *** ORAL JUDGMENT: 1. Heard learned Counsel for the accused/applicant and Counsel holding for Mr. Amol Gandhi, Counsel for respondent no.2. Rule. Heard forthwith with the consent of respective Counsel. 2. The noting dt. 14.8.2009 makes it amply clear that it was based on two applications, the hearing of the application is slated today. 3. The accused/applicants are Police Constables. They claim to have lent Rs. 1,00,000/- (Rs.one lac) to the complainant R.R.Pawar since complainant was known to them. In discharge of said liability, a cheque was issued by the complainant, however, since it was realised that cunningly the complainant had signed at the reverse but did not sign at the obverse portion of the cheque, it was so indicated to him. This was followed by lodging report dt.25.12.2006 at Zila Peth Police Station and at that time it is said, he has signed at the obverse of the cheque. 4. The factual matrix, as referred in the FIR initiated by the complainant illustrates of an 4 incident of dt.24.12.2006, at 12.30 noon when he was in the shop with his brother and nephew. The accused Sopan Bhika Patil and Hansraj Padmasingh Hazari, Police staff, came in plainclothes and made inquiry for him. One would have accepted this contention of barging of the Police staff in the shop of the complainant, however, the complainant surreptitiously on 25th Dec.,2006, informed the Police Inspector, Zila Peth Police Station, he has lost the cheques in question before 4 to 8 days, including cheque of his wife Surekha. The fact remains, the incident dt. 24.12.2006, was as fresh as was possible in the mind of the complainant, however, he did not utter the same in any form on 25.12.2006, though the gravity in the matter, as is spelt out in the FIR, was so high to get complainant scared. The matter does not stop here. The complainant remained in slumber from 24.12.2006 and it was only on 6th Jan.,2007, to counter and pre-empt the affairs of the accused/applicants herein to initiate the proceedings under Section 138 of Negotiable Instruments Act, has filed the proceedings in terms of FIR No.4/2007. 5. Hon'ble Lordships of the Apex Court in the matter of Sunil Kumar V. M/s Escorts Yamaha Motors (AIR 2000 SUPREME COURT 27) have observed that the FIR even taken on face value do not satisfy the ingredients of the offence alleged to 5 have been made and on the other hand it manifestly indicates that the complainant has instituted criminal proceedings with ulterior motive for wreaking vengeance and to pre-empt the filing of the criminal complaint against him under Section 138 of the Negotiable Instruments Act, calls for interference. 6. After going through the report, I find that it is in this bid to obviate action under Section 138 of Negotiable Instruments Act, the report filed by the complainant. The proceedings is amounting to abuse of process, it is a cloak to desist the constable from following due process in terms of Negotiable Instruments Act. The impugned FIR is quashed and set aside. Rule made absolute accordingly. (K.U.CHANDIWAL) JUDGE ... agp/1231-07crapl