M/s Tirupati Balaji Fuel v. Vikram Singh & Ors

Mr.Arvind Dubey, Advocate Mr.Dharmesh Shrivastava, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice 31 /08/2023 Order on Board

#1. Heard Mr.Arvind Dubey, learned counsel for the petitioner as well as Mr.Dharmesh Shrivastava, learned counsel for the respondents.

#2. The petitioner has filed this petition under Section 482 CrPC with the following prayers:- “(i) Call for the records from the learned Court below. (ii) Set aside the order dated 31/05/2016 passed by the learned Session Judge, Korba in Criminal Revision No.36/2016.”

#3. Brief facts necessary for disposal of the petition are that the applicant is the proprietary firm in the name and style of M/s Tirupati Balaji Fuels involved with the business of retail sales of diesel and 2 petrol at Korba. Respondent No.1 was introduced as a proprietor of “M/s M.K. Enterprises” by his father having involved in transportation business. The petitioner sold diesel and petrol on credit to respondent No.1. Respondent No.1 gave a cheque of Rs.1,16,203/- in lieu of payment of diesel taken by him. The aforesaid cheque was deposited by the petitioner in his bank, which was returned unpaid due to insufficient fund in the account of M.K. Enterprises. The petitioner sent legal notice to respondent No.1, but he refused to take the said notice with an oblique motive.

#4. The petitioner thereafter filed a complaint under Section 138 and 114 of the Negotiable Instruments Act, 1881 before the Chief Judicial Magistrate, Korba. The learned trial Court registered a case and issued arrest warrant against respondent No.1. In the meanwhile, during proceedings of the complaint, the petitioner came to the knowledge that respondent No.1 is not a proprietor of the firm M/s.M.K. Enterprises, but his brother Simiranjeet Singh is the proprietor of the firm. After knowing the aforesaid fact, the petitioner moved an application before the learned trial Court for impleading respondent No.2 as accused No.2 and and the same was allowed by the learned trial Court by order dated 01.04.2016.

#5. Respondent No.1 filed a revision before the learned Sessions Judge, Korba, challenging the order dated 01.04.2016, by which respondent No.2 has been impleaded as accused No.2. The learned Sessions Judge allowed the revision of respondent No.1 3 and set aside the order dated 01.04.2016 whereby respondent No.2 has been impleaded as an accused in the case. Hence, this petition.

#6. Learned counsel for the petitioners submits that the learned revisional Court has utterly failed to appreciate the settled legal position according to which the learned trial Court can implead any person co-accused during the proceedings if any material which involves the persons in the case, has been placed before it. The learned revisional Court reversed the well reasoned order of the learned trial Court by wrong appreciation of the facts and law. The learned Sessions Judge has failed to consider the essential ingredients on the basis of which the learned trial Court allowed the application and respondent No.2 has been impleaded as accused No.2. The learned Sessions Judge has gone to the technicality where the petitioner has wrongly mentioned the caption “application for amendment”, whereas the learned trial Court can implead any persons as accused by invoking provisions under the Code of Criminal Procedure, 1973 and that cannot be the ground for frustrating the legally tenable application. In the instant case, the learned trial Court impleaded respondent No.2 as accused No.2 due to incriminating materials / ingredients brought before it and he has rightly considered and allowed the application and the learned Sessions Judge has wrongly reversed the said finding. As such, the petition deserves to be allowed and the impugned order deserves to be set aside. 4

#7. On the other hand, learned counsel for the respondents, supports the impugned order and submit that the revisional Court has rightly reversed the order of the trial Court, in which no interference is called for.

#8. I have heard learned counsel for the parties, perused the impugned order and documents appended with petition.

#9. From perusal of the impugned order, it transpires that the Sessions Judge has recorded the finding that when the petitioner was already well acquainted with the respondents, then in such a situation, considering the statement made by the petitioner in the complaint, he becomes bound by the fact that he had no idea about the business of the respondents. Before presenting such a complaint, in view of the mandatory provisions of Section 138 (B) (C) and 142 of the Negotiable Instruments Act, the trial Court can take cognizance against a person only if the said provisions are followed. In such a situation, in the light of the examples presented in the context of the arguments of the learned counsel for both the parties, I come to the conclusion that the order passed by the trial Court on 01.04.2016 while accepting the application submitted by the petitioner, the method by which the amendments were allowed to be incorporated in the complaint is contrary and erroneous. Therefore, after accepting this revision, the order passed by the trial Court on

01.04.2016 was set aside.

#10. After hearing learned counsel for the parties and after perusing the 5 impugned order and the order of the trial Court, I do not find any illegality, perversity or jurisdictional error in the impugned order warranting interference in exercise of extraordinary jurisdiction under Section 482 CrPC.

#11. Accordingly, the present CrMP deserves to be and is hereby dismissed leaving it open to the petitioner to avail the appropriate remedy available to him under the law, if so advised. Sd/- (Ramesh Sinha) Chief Justice Bablu