- (1.) HEARD Sri Vikas Sharma, Advocate, holding brief of Sri Dharmendra Singhal, learned counsel for the revisionist, Sri Anil Srivastava, learned counsel for opp. party No.2 and learned AGA for the State.
(2.) THIS Criminal Revision has been preferred against the judgment and order dated 21.3.2003, passed by the Additional Sessions Judge, Court No.14, Aligarh in Criminal Revision No.720 of 2003 (Ramesh Chander Vs. Hem Garg), whereby the Lower Revisional Court discharged the accused opp. party No.2 for offence under Section 406 I.P.C. Brief facts of the case is that the revisionist Ms. Hem Garg had a brother Sri H.C. Agarwal, who died in an accident. Before his death the accused Ramesh Chander Saxena had given him a cheque of Rs.50,000/- on 21.6.1995. This payment was made to the complainants' brother in lieu of the money taken by the accused as loan. The said cheque was not presented to the Bank on the request of the accused himself as he had no sufficient funds. Before the Cheque could be presented to the Bank, the revisionist's brother Sri H.C. Agarwal died in a road accident. After two years, revisionist gave a notice on 3.9.1997 through her lawyer to the accused and after that filed a complaint in the Court of 3rd Additional Chief Judicial Magistrate, Aligarh for offence under Sections 420, 406 I.P.C. After recording the statement of the revisionist under Section 244 Cr.P.C. and other documentary evidence, the 2nd Additional Civil Judge (Junior Division) Aligarh framed charges against the accused for offence under Section 406 I.P.C. vide order dated 17.10.2002. Being aggrieved by the order dated 17.10.2002 passed by the 2nd Additional Civil Judge (Junior Division), Aligarh, accused preferred a Criminal Revision No. 720 of 2002 before the Additional Sessions Judge, Court No.14, Aligarh and the same was allowed by the Additional Sessions Judge, vide order dated 21.3.2003 and the order dated 17.10.2002 of the Magistrate was set aside by the Lower Revisional Court and the accused opp. party No.2 was discharged. Hence, the present revision has been preferred before this Court.
(3.) LEARNED counsel for the revisionist argued that the impugned order passed by the Lower Revisional Court is not in accordance with law as the lower Revisional Court has exceeded in its jurisdiction and has wrongly set aside the order passed by the Magistrate framing charge against the accused opp. party No.2 for offence under Section 406 I.P.C. as a prima facie case was made out against him in the opinion of the trial Court on the basis of the evidence recorded by it. Hence the impugned order should be set aside by this Court. On the other hand, Sri Anil Srivastava, learned counsel for the opp. party No.2, has argued that the impugned order passed by the Lower Revisional Court discharging the accused opp. party for offence under Section 406 I.P.C. is in consonance with law and the Lower Revisional Court has rightly set aside the order of the Magistrate as admittedly no offence under Section 406 I.P.C. is made out against the accused. He further argued that assuming the version of the revisionist as narrated by her in her complaint, the basic ingredients of Section 406 I.P.C. is not fulfilled, hence the prosecution of the accused is wholly unwarranted, therefore, the order of the Lower Revisional Court does not call for any interference by this Court. In support of his contention he has placed reliance on the judgment of the Supreme Court reported in (2010)10SCC361 V.P. Srivastava Vs. Indian Explosives Ltd., in which it was held that " there is nothing in the complaint which may even suggest remotely that the IEL had entrusted any property to the appellants or that the appellants had dominion over any of the properties of the IEL, which they dishonestly converted to their own use so as to satisfy the ingredients of Section 405 I.P.C., punishable under Section 406 I.P.C.";