Holding

The order denying discharge was not an interlocutory order and therefore the revision was maintainable, but the order was upheld as it was based on a prima facie case.

Summary

The petitioners were accused of cheating and criminal breach of trust for issuing dishonoured cheques for the purchase of steel bars, leading to a criminal complaint under Sections 406, 420 and 114 of the IPC and Section 138 of the Negotiable Instruments Act. They filed a Section 239 Cr.P.C. application seeking discharge, which the trial court rejected, prompting a revision under Section 397(1) Cr.P.C. The central issue was whether the trial court's order denying discharge was an "interlocutory order" barred by Section 397(2) of the Code. The High Court, relying on Supreme Court jurisprudence, held that the order affected a substantial right of the accused and therefore was not merely interlocutory. Consequently, the revision was maintainable but, on merits, the court found the trial court's decision justified as the material prima facie established the offences. The revision application was dismissed and the trial was directed to proceed expeditiously.

Issues considered

The applicability of Section 397(2) Cr.P.C. to the trial court's order denying discharge under Section 239.
Whether the order denying discharge constitutes an interlocutory order within the meaning of the Code.
The merits of the petitioners' claim of no prima facie case under Sections 406 and 420 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 227, s. 228, s. 239, s. 397(1), s. 397(2), s. 398, s. 482
Indian Penal Code, 1860s. 114, s. 120B, s. 406, s. 420
Negotiable Instruments Acts. 138
Prevention of Corruption Acts. 5(1), s. 5(2)
Special Courts Act, 1979s. 11

Subjects

revisioninterlocutory orderCriminal Procedure CodeSection 239Section 397charge framingIPC 406IPC 420Negotiable Instruments Act

Judgment

R/CR.RA/213/2016 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL REVISION APPLICATION NO. 213 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE BELA M. TRIVEDI Sd/-

==========================================================

1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO

2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO

4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?

==========================================================
YOGESH PREMJIBHAI SUVARIYA & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MEET M THAKKAR(7766) for the Applicant(s) No. 1,2
MR. JAY M THAKKAR(6677) for the Applicant(s) No. 1,2
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 2
MS CM SHAH, APP for the Respondent(s) No. 1
==========================================================

CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

Date : 24/03/2021

CAV JUDGMENT

1. The present Revision Application is directed

against the order dated 08.02.2016 passed by the

Additional Chief Judicial Magistrate, Anjar, Kutch in

Page 1 of 28
R/CR.RA/213/2016 CAV JUDGMENT

Criminal Case No. 584 of 2012, whereby the trial

Court has rejected the application at Exh. 17 filed

by the accused (petitioners herein) seeking their

discharge from the case under Section 239 of the

Criminal Procedure Code (hereinafter referred to as

“the Code”).

2. The short facts giving rise to the present

Revision Application are that the complainant

Anilbhai S/o Vashrambhai Savadiya had lodged a

complaint against the present petitionersaccused

alleging inter alia that the petitioners had placed

two orders with the complainant on 14.11.2011 and

21.11.2011 for the purchase of 293 metric tonnes of

TMT Steel Bars, against which they had given ten

cheques amounting to Rs. 1.19 Crores. Accordingly,

the complainant had delivered the goods on various

dates in November, 2011. Thereafter, the cheques

given by the petitioners were presented in the Bank

by the complainant, however all the ten cheques had

returned dishonored with the endorsement

“insufficient balance”. It was further alleged that

since the petitionersaccused had not paid the amount

of cheques and committed cheating and breach of

Page 2 of 28
R/CR.RA/213/2016 CAV JUDGMENT

trust, the complainant had filed complaints under

Section 138 of the Negotiable Instruments Act, and

that the present complaint was filed for the offences

under Section 406, 420 and 114 of IPC. The

Investigating Officer after the completion of the

investigation, had filed a chargesheet on 03.05.2012

before the trial Court, which was registered as the

Criminal Case No. 584 of 2012. On 05.08.2015, the

petitioners preferred an application under Section

239 of Cr.P.C seeking their discharge from the case,

which has been dismissed by the trial Court vide the

impugned order. Being aggrieved by the said order,

the present Revision Application has been filed under

Section 397(1) of the Code.

3. At the outset, the learned Advocate Mr. Anuj

Trivedi appearing for the respondent No. 2

complainant raised a preliminary objection as regards

the maintainability of the Revision Application by

submitting that the impugned order being an

interlocutory order, the Revision Application was

barred under Section 397(2) of Code. The learned

Advocate Mr. Jay Thakkar appearing for the

petitioners, in response thereto placed heavy

Page 3 of 28
R/CR.RA/213/2016 CAV JUDGMENT

reliance on various decisions of the Supreme Court to

submit that the impugned order could not be said to

be an interlocutory order and therefore the Revision

Application against the same was maintainable.

4. The sheet anchor of the arguments of the

learned Advocate Mr.Thakkar appearing for the

petitioners was that the term “interlocutory” used in

Section 397(2) of the Code is used in restricted

sense and not in very broad or artistic sense. It

merely denotes the orders of a purely interim or

temporary nature, which do not decide or touch the

important rights or liabilities of the parties.

Since vide the impugned order passed by the trial

Court, the important right of the petitionersaccused

to get discharge from the case has been affected, the

said order could not be said to be an interlocutory

order. Learned Advocate Mr. Thakkar to buttress his

submissions has placed reliance on the decisions of

the Supreme Court in cases of Amar Nath and Others

versus State of Haryana and Another reported in AIR

1977 SC 2185, Madhu Limaye versus State of

Maharashtra reported in AIR 1978 SC 47 and in case of

Parmeshwari Devi versus State and Anr. reported in

Page 4 of 28
R/CR.RA/213/2016 CAV JUDGMENT

AIR 1977 SC 403. Distinguishing the observations made

by the Supreme Court in case of V.C. Shukla versus

State through CBI reported in 1980 AIR 962, relied

upon by Mr.Anuj Trivedi, Mr.Thakkar empathetically

submitted that in the said judgment, the Supreme

Court was dealing with the issue of maintainability

of the appeal under Section 11(1) of the Special

Court's Act, 1979, which barred the filing of the

appeal against an interlocutory order and that it had

different connotation from the one under Section

397(2) of the Code.

5. In order to appreciate the submissions made by

the learned Advocates for the parties on the issue as

to whether the impugned order could be termed as an

“interlocutory order”, so as to attract the bar under

Section 397(2) of the Code, it would be beneficial to

reproduce the relevant provision, which reads as

under:

“397. Calling for records to exercise powers of

revision.

(1) xxx

(2) The powers of revision conferred by sub
section (1) shall not be exercised in relation

Page 5 of 28
R/CR.RA/213/2016 CAV JUDGMENT

to any interlocutory order passed in any appeal,
inquiry, trial or other proceeding.”

6. The Supreme Court in catena of decisions has

interpreted the term”interlocutory order” in the

context of Section 397(2) of the Code. In case of

Amar Nath and Others (supra) on which learned

Advocate Mr. Thakkar has placed heavy reliance, the

order under challenge was the order of the Judicial

Magistrate summoning the appellantsaccused in the

said case. The Supreme Court upholding the view

taken by the High Court to the effect that where a

revision of the High Court against the order of the

Subordinate Court is expressly barred under sub

Section (2) of Section 397 of the Code, the inherent

powers contained in Section 482 would not be

available to defeat the bar contained in Section

397(2). The Supreme Court examined in detail the

phrase “interlocutory order” qua the revisional

jurisdiction, and after considering the Statement of

Objects and Reasons of incorporating Section 397(2)

in the Code, interpreted the said provision as under:

“6. Let us now proceed to interpret the
provisions of Section 397 against the historical
background of these facts. Sub section (2) of
Section 397 of the 1973 Code may be extracted

Page 6 of 28
R/CR.RA/213/2016 CAV JUDGMENT

thus :

"The powers of revision conferred by Sub
section (1) shall not be exercised in
relation to any interlocutory order
passed ;in any appeal, inquiry, trial or
other proceeding."

The main question which falls for determination
in this appeal is as to, what is the connotation
of the term "interlocutory order" as appearing
in subs. (2) of Section 397 which bars any
revision of such an order by the High Court. The
term "interlocutory order" is a term of well
known legal significance and does not present
any serious difficulty. It has been used in
various statutes including the Code of Civil
Procedure, Letters Patent of the High Courts and
other like statutes. In Webster's New World
Dictionary "interlocutory" has been defined as
an order other than final decision. Decided
cases have laid down that interlocutory orders
to be appealable must be those which decide 'the
rights and liabilities of the parties concerning
a particular aspect. It seems to us that the
term "interlocutory order" in section 397(2) of
the 1973 Code has been used in a restricted
sense and not in any broad or artistic sense. It
merely denotes orders of a purely interim or
temporary nature which do not decide or touch
the important rights, or the liabilities of the
parties. Any order which substantially affects
the, right of the accused, or decides certain
rights of the parties cannot be said to be an
interlocutory order so as to bar a revision to
the High Court against that order, because that
would be against the very object which formed
the basis for insertion of this particular
provision in Section 397 of the, 1973 Code.
Thus, for instance, orders summoning witnesses,
adjourning cases, passing orders for bail,
calling for reports and such other steps in aid
of the pending proceeding, may no doubt amount
to interlocutory orders against which no
revision would lie under Section 397 (2) of the

Page 7 of 28
R/CR.RA/213/2016 CAV JUDGMENT

1973 Code. But orders which are matters of
moment and which affect or adjudicate the rights
of the accused or a particular aspect of the
trial cannot be said to be interlocutory order
so as to be outside the purview of the
revisional jurisdiction of the High Court.”

7. At this juncture, it would be also very relevant

to mention that the Supreme Court in the said case

considered the factual matrix in paragraph 10 for

coming to the conclusion that the impugned order in

the said case cannot be held to be an interlocutory

order which had substantially affected the rights of

the appellants accused to be put on trial. The

paragraph 10 thereof reads as under:

“10. Applying the aforesaid tests, let us now
see whether the order impugned in the instant
case can be said to be an interlocutory order as
held by the High Court. In the first place, so
far as the appellants are concerned, the police
had submitted its final report against them and
they were released by the Judicial Magistrate. A
revision against that order to the Additional
Sessions Judge preferred by the complainant had
failed. Thus the appellants, by virtue of the
order of the Judicial Magistrate as affirmed by
the Additional Sessions Judge, acquired a
valuable right of not being put on trial unless
a proper order was made against them. Then came
the complaint by respondent No. 2 before the
Judicial Magistrate which was also dismissed on
merits. The Sessions Judge in revision, however,
set aside the order dismissing the complaint and
ordered further inquiry. The Magistrate on
receiving the order of the Sessions Judge
summoned the appellants straightaway which meant

Page 8 of 28
R/CR.RA/213/2016 CAV JUDGMENT

that the appellants were to be put on trial. So
long as the Judicial Magistrate had not passed
this order, no proceedings were started against
the appellants, nor were any such proceedings
pending against them. It was only with the
passing of the impugned order that the
proceedings started and the question of the
appellants being put up for trial arose for the
first time. This was undoubtedly a valuable
right which the appellants possessed and which
was being denied to them by the impugned order.
It cannot, therefore, be said that the
appellants were not at all prejudiced, or that
any right of their's was not involved by the
impugned order. It is difficult to hold that the
impugned order summoning the appellants
straightaway was merely an interlocutory order
which could not be revised by the High Court
under subsections (1) and (2) of Section 397 of
the 1973 Code. The order of the Judicial
Magistrate summoning the appellants in the
circumstances of the present case, particularly
having regard to what had preceded, was
undoubtedly a matter of moment, and a valuable
right of the appellants had been taken away by
the Magistrate's passing an order prima facie in
a mechanical fashion without applying his mind.
We are, therefore, satisfied that the order
impugned was one which was a matter of moment
and which did involve a decision regarding the
rights of the appellants. If the appellants were
not summoned, then they could not have faced the
trial at all, but by compelling the appellants
to face a trial without proper application of
mind cannot be held to be an interlocutory
matter but one which decided a serious question
as to the rights of the appellants to be put on
trial.“

8. From the aforestated facts, it is very clear

that the accused in the said case were, at the first

instance already released by the Judicial Magistrate,

Page 9 of 28
R/CR.RA/213/2016 CAV JUDGMENT

on accepting the final report of the Police, and a

revision application against that order to the

Additional Sessions Judge preferred by the

complainant, had also failed. The Supreme Court

therefore, observed that by virtue of the order of

the Judicial Magistrate as affirmed by the Additional

Sessions Judge, the appellantsaccused had acquired

valuable rights of not being put on trial, unless a

proper order was made against them. Thereafter, the

complaint filed by the complainant before the

Judicial Magistrate was also dismissed on merits.

However, the Sessions Court in Revision set aside the

order of dismissing the complaint and ordered further

inquiry. The Magistrate thereafter summoned the

appellantsaccused for putting them on trial. In the

back ground of these facts, the Supreme Court

observed that the valuable right which the

appellantsaccused had possessed, was being denied to

them by the impugned order of summoning them and

therefore the said order could not be termed as an

interlocutory order.

9. The observations made by the Supreme Court in

the said case of Amar Nath (supra) came to be

Page 10 of 28
R/CR.RA/213/2016 CAV JUDGMENT

reconsidered by the three Judges Bench of the Supreme

Court in case of Madhu Limaye (supra). In the case

of Madhu Limaye (supra), the appellantaccused had

filed an application before the Sessions Court to

dismiss the complaint filed against him on the ground

that the Court had no jurisdiction to entertain the

complaint. In the application, various other

contentions were also raised with regard to the

validity and legality of the trial. The Sessions

Court rejected all the contentions and framed the

charges against the appellantsaccused, which order

was challenged in the High Court by way of Revision.

The High Court upheld the preliminary objection as to

the maintainability of the Revision Application filed

under Section 397 of the Code, which order was

challenged before the Supreme Court. The Supreme

Court reiterated the view taken by the Court in the

case of Amar Nath (supra), however in modified and

modulated form, the Supreme Court while reaffirming

the decision of the Court in the case of Amar Nath

(supra) observed that the impugned order of the

Magistrate was not an interlocutory order, and found

that the statement of law laid down in the case of

Page 11 of 28
R/CR.RA/213/2016 CAV JUDGMENT

Amar Nath (supra) to the effect that where a revision

to the High Court against the order of the

subordinate judge is expressly barred under sub

Section (2) of Section 397 of the Code the inherent

powers contained in Section 482 would not be

available to defeat the bar contained in Section

397(2), was not quite accurate and needed some

modulation. The Supreme Court thereafter proceeded

to examine as to what was the correct position of law

after the introduction of the provisions like sub

Section (2) of Section 397 of the Code. The Supreme

Court after discussing various earlier decisions

including the decision in the case of Amar Nath

(supra) observed in paragraphs 16 and 17 as under:

“16. We may also refer to the decision of this
Court in Parmeshwari Devi v. State and Anr.(1)
that an order made in a criminal proceeding
against a person who is not a party to the
enquiry or trial and which adversely affected
him is not an interlocutory order within the
meaning of section 397 (2). Referring to a
passage from the decision of this Court in Mohan
Lals case the passage which is to be found in
Halsbury's Laws of England, Volume 22, it has
been said by Shinghal J., delivering the
judgment of the Court, at page 164 :
"It may thus be conclusive with
reference to the stage at which it is
made, and it may also be conclusive as
to a person who is not a party to the
enquiry or trial, against whom it is

Page 12 of 28
R/CR.RA/213/2016 CAV JUDGMENT

directed."

As already mentioned, the view expressed in
Mohan Lal's case may be open to debate or
difference. One such example is to be found in
the decision of this Court in Prakash Chand
Agarwal & Ors. v. M/s Hindustan Steel Ltd.,
wherein it was held that an order of the High
Court setting aside an exparte decree in the
suit and restoring the suit to the file of the
Trial Court is not a final order within the
meaning of Article 133. It is to be noticed that
if the High Court would have refused to set
aside the exparte decree, the proceeding for
setting it aside would have finally ended and on
some of the principles culled out by the
majority in Mohan Lars case, such an order would
have been a final order. We are, however, not
under any necessity to enter into this
controversial arena. In our opinion whether the
type of the order aforesaid would be a final
order or not, surely it will not be an
interlocutory order within the meaning of sub
section (2) of section 397 of the 1973 Code.

17.Before we conclude we may point out an
obvious, almost insurmountable, difficulty in
the way of applying literally the test laid down
in Kuppuswami Rao's case and in holding that an
order of the kind under consideration being not
a final order must necessarily be an
interlocutory one. If a complaint is dismissed
under section 203 or under section 204(4), or
the Court holds the proceeding to be void or
discharges the accused, a revision to the High
Court at the instance of the complainant or the
prosecutor would be competent, otherwise it will
make Section 398 of the new Code otiose. Does it
stand to reason, then, that an accused will have
no remedy to move the High Court in revision or
invoke its inherent power for the quashing of
the criminal proceeding initiated upon a
complaint or otherwise and which is fit to be
quashed on the face of it? The legislature left
the power to order further inquiry intact in

Page 13 of 28
R/CR.RA/213/2016 CAV JUDGMENT

Section 398. Is it not, then, in consonance with
the sense of justice to leave intact the remedy
of the accused to move the High Court for
setting aside the order adversely made against
him in similar circumstances and to quash the
proceeding? The answer must be given in favour
of the just and reasonable view expressed by us
above.”

10. The expression “interlocutory order”

incorporated in Section 397(2) of the Code again came

up for consideration before the four Judges Bench of

the Supreme Court in case of V.C. Shukla (supra), in

the context of Section 11 of the Special Courts Act.

In the said case, the appeal was directed against

the order passed by the Special Judge appointed under

the Special Courts Act, 1979 by which the Special

Judge had directed a charge to be framed against the

appellantaccused under Section 120B of IPC read with

Section 5(1) and 5(2) of the Prevention of Corruption

Act as also under Section 5(2) read with Section 5(1)

(d) of the said Act. On the preliminary hearing of

the appeal before the Division Bench of the Supreme

Court, a preliminary objection as to the

maintainability of the appeal was raised by the

Solicitor General of India on the ground that the

order impugned being purely an interlocutory order

Page 14 of 28
R/CR.RA/213/2016 CAV JUDGMENT

within the meaning of Section 11(1) of the Special

Courts Act, the appeal was not maintainable. The

Division Bench in view of the nature of the

substantial question of law involved, referred the

case to the larger Bench and the larger Bench

considered the expression “interlocutory order”

contained in Section 397(2) of the Code as also in

Section 11 of the Special Courts Act. The larger

Bench after considering the decision in the case of

Amar Nath (supra), Madhu Limaye (supra) and many

other cases laid down the propositions as contained

in para. 33 thereof:

“33. There is yet another aspect of the matter
which has to be concerned so far as this
decision is considered, to which we shall advert
when we t deal] with the last plank of the
argument of the learned counsel for the
appellant. Suffice it to say at the moment that
the case referred to also fully endorses the
view taken by the Federal Court and the English
decisions, viz., that an order is not a final
but all interlocutory one if it does not
determine or decide the rights of parties once
for all. Thus, on a consideration of the
authorities, mentioned above, the. following
proposition emerge:

(1) that an order which does not determine the
rights of the parties but only one aspect of the
suit or the trial is an interlocutory order;

(2) that the concept of interlocutory order has

Page 15 of 28
R/CR.RA/213/2016 CAV JUDGMENT

to be ex plained. in contradistinction to a
final order. In other words, if an order is not
a final order, it would be an interlocutory
order;

(3) that one of the tests generally accepted by
the English Courts and the Federal Court is to
see if the order is decided in one way, it may
terminate the proceedings but if decided in
another way, then the proceedings would
continue; because, in our opinion, the term
'interlocutory order' in the Criminal Procedure
Code has been used in a much wider sense so as
to include even intermediate or quasi final
orders;

(4) that an order passed by the Special Court
discharging the accused would undoubtedly be a
final order inasmuch as it finally decides the
rights of the parties and puts an end to the
controversy and thereby terminates the entire
proceedings before the court so that nothing is
left to be done by the court thereafter;

(5) that even if the Act does not permit an
appeal against an interlocutory order the
accused is not left without 425 any remedy
because in suitable cases, the accused can
always move this Court in its jurisdiction under
Art. 136 of the Constitution even against an
order framing charges against the accused. Thus,
it cannot be said that by not allowing an appeal
against an order. framing charges, the Act.
works serious injustice to the accused.”

11. The Supreme Court thereafter proceeded on

applying the said test to the impugned order and held

inter alia that the order of framing of charges is

purely an interlocutory order as it does not

terminate the proceedings but the trial goes on until

Page 16 of 28
R/CR.RA/213/2016 CAV JUDGMENT

it culminates in acquittal or conviction. To be

precise the observations made in para. 34 in this

regard read as under:

“34. Applying these tests to the order impugned
we find that the order framing of the charges is
purely an interlocutory order as it does not
terminate the proceedings but the trial goes on
until it culminates in acquittal or conviction.
It is true that if the Special Court would have
refused to frame charges and discharged the
accused, the proceedings would have 'terminated'
but that is only one side of the picture. The
other side of the picture is that if the Special
Court refused to discharge the accused and
framed charges against him, then the order would
be interlocutory because the trial would still
be alive. Mr. Mridul tried to repel the argument
of the Solicitor General and explained the
decisions, referred to above, on the ground that
the English decisions as also the Federal
Court's decisions made the observations while
interpreting the provisions of the Government of
India Act or the provisions of the Constitution
where the word "final" order was expressly used.
It was urged that the same construction would
not apply to the present case where the word
'order' is not qualified by the word 'final'.
With due respect to the learned counsel, in our
opinion, the distinction sought to be drawn is a
distinction without and difference. This court
as also the Federal Court have clearly pointed
out that so far as the tests to be applied to
determine whether an order is final or
interlocutory, apply as much to a civil case as
to a criminal case. Furthermore, as already
indicated, it is impossible to spell out the
concept of an interlocutory order unless it is
understood in contradistinction to or in
contrast with a final order. This was held in a
number of cases referred to, including Madhu
Limaye's case (supra) which has been expressly
stressed by us in an earlier part of the

Page 17 of 28
R/CR.RA/213/2016 CAV JUDGMENT

judgement. For these reasons, therefore, the
contention of the learned counsel for the
appellant on this aspect of the matter fails and
is hereby overruled. ”

12. In the last the larger Bench observed in the

context of Section 11 of the Special Courts Act as

under:

“44. On a true construction of Section 11(1) of
the Act and taking into consideration the
natural meaning of the expression 'interlocutory
order', there can be no doubt that the order
framing charges against the appellant under the
Act was merely an interlocutory order which
neither terminated the proceedings nor finally
decided the rights of the parties. According to
the test laid down in Kuppuswami's case (supra)
the order impugned was undoubtedly an
interlocutory order. Taking into consideration,
therefore, the natural meaning of interlocutory
order and applying the non obstante clause, the
position is that the provisions of the Code of
Criminal Procedure are expressly excluded by the
non obstante clause and therefore section 397(2)
of the Code cannot be called into aid in order
to hold that the order impugned is not an
interlocutory order. As the decisions of this
Court in the cases of Madhu Limaye and Amarnath
& Ors. v. State of Haryana & Ors. were given
with respect to the provisions of the Code,
particularly section 397(2), they were correctly
decided and would have no application to the
interpretation of section 11(1) of the Act,
which expressly excludes the provisions of the
Code of Criminal Procedure by virtue of the non
obstante clause.”

13. In view of the above, though it is true that in

the aforestated judgment of V.C. Shukla (supra), the

Supreme Court, while interpreting Section 11(1) of

Page 18 of 28
R/CR.RA/213/2016 CAV JUDGMENT

the Special Courts Act and considering the natural

meaning of the expression “interlocutory order”, held

that the order like framing of charges was an

interlocutory order against which the appeal under

Section 11(1) of the Special Courts Act was not

maintainable, the Supreme Court had elaborately

considered the bar contained in Section 397(2) of the

Code and held that the order of framing of charges is

purely an interlocutory order as it does not

terminate the proceedings but the trial goes on until

it culminates in acquittal or conviction. In view of

the said specific ratio laid down by the Supreme

Court, the Court has no hesitation in holding that in

the instant case the impugned order rejecting the

application of the applicants seeking discharge under

Section 239 of the Code being an interlocutory

order, as it does not terminate the proceedings, the

revision application under Section 397(2) of the Code

is barred. The present application therefore deserves

to be dismissed on the ground of nonmaintainability

alone, nonetheless even if it is held to be

maintainable, the Court does not find any substance

in the merits of the revision application.

Page 19 of 28
R/CR.RA/213/2016 CAV JUDGMENT

14. Though the learned Advocate Mr. Jay Thakkar had

initially sought to submit that the respondent

complainant having filed the complaint under Section

138 of the Negotiable Instruments Act, the present

complaint for the offences under the IPC was not

maintainable, during the course of his oral

submissions, he had fairly conceded that in view of

the decision in case of Sangeetaben Mahendrabhai

Patel vs State Of Gujarat & Anr reported in (2012) 7

SCC 621, even if the accused was tried earlier for

the offences punishable under Section 138 of the

Negotiable Instruments Act, the complaint for the

offences punishable under Sections 406 and 420 of IPC

would be maintainable. The Supreme Court in the said

case had held as under:

“37. Admittedly, the appellant had been tried
earlier for the offences punishable under the
provisions of Section 138 N.I. Act and the case
is sub judice before the High Court. In the
instant case, he is involved under Section
406/420 read with Section 114 IPC. In the
prosecution under Section 138 N.I. Act, the mens
rea i.e. fraudulent or dishonest intention at
the time of issuance of cheque is not required
to be proved. However, in the case under IPC
involved herein, the issue of mens rea may be
relevant. The offence punishable under Section
420 IPC is a serious one as the sentence of 7
years can be imposed.

Page 20 of 28
R/CR.RA/213/2016 CAV JUDGMENT

38. In the case under N.I. Act, there is a legal
presumption that the cheque had been issued for
discharging the antecedent liability and that
presumption can be rebutted only by the person who
draws the cheque. Such a requirement is not there in
the offences under IPC. In the case under N.I. Act,
if a fine is imposed, it is to be adjusted to meet
the legally enforceable liability. There cannot be
such a requirement in the offences under IPC. The
case under N.I. Act can only be initiated by filing
a complaint. However, in a case under the IPC such a
condition is not necessary.

39. There may be some overlapping of facts in
both the cases but ingredients of offences are
entirely different. Thus, the subsequent case is
not barred by any of the aforesaid statutory
provisions.”

15. As regards the merits of the case, learned

Advocate Mr.Thakkar had submitted that there was no

prima facie case made out against the petitioners for

the alleged offences under Sections 406 and 420 of

IPC. According to him, the dispute between the

parties is essentially of a Civil Nature, as non

payment or underpayment of the prices of the goods by

itself would not amount to commission of offences of

cheating or criminal breach of trust. Placing heavy

reliance on the decision of this Court in case of Vir

Prakash Sharma Vs. Anil Kumar Agarwal reported in

(2007) 3 GLH 182, he submitted that mere nonpayment

Page 21 of 28
R/CR.RA/213/2016 CAV JUDGMENT

of prices for the goods purchased would not amount to

criminal breach of trust or cheating. Reliance was

also placed by learned Advocate Mr. Thakkar on the

decision of the Supreme Court in case of Lalitbhai

Bhanubhai Limbasia versus State of Gujarat reported

in (2004) 4 GLR 3233 in which the accused was

discharged by this Court holding that the transaction

between the buyer and the seller did not amount to

offences under Section 406 or 420 of IPC. In the last

plank of his arguments, Mr. Thakkar submitted that

one another FIR was filed against the petitioner no.

1 on the basis of similar allegations and the said

FIR was quashed by this Court in Criminal Misc.

Application No. 13233 of 2012 by holding that prima

facie the dispute was in respect of the nonpayment

of dues of the complainant which can be said to be

dues of unpaid seller.

16. Per contra learned Advocate Mr. Anuj Trivedi

appearing for the respondent no. 2 taking the Court

to the papers of chargesheet submitted that the

petitioners were entrusted with the properties of the

respondent No. 2 on the basis of a legal contract,

however the petitioners sold the said properties

Page 22 of 28
R/CR.RA/213/2016 CAV JUDGMENT

(goods) to a third party and unjustly enriched

themselves, and willfully chose not to make payment

to the respondent No. 2, which clearly satisfied the

ingredients of the offences under Section 406 of IPC.

Similarly, from the papers of the chargesheet, it is

made out that the respondent no. 2 was induced by the

petitioners to deliver the goods by false assurances

and promises, and they having intentionally deceived

the respondent No. 2, the offence under Section 420

of IPC was also made out. Learned Advocate Mr.

Trivedi has placed reliance upon the decision of the

Supreme Court in case of Rajesh Bajaj Versus State

NCT of Delhi and Ors., reported in (1999) 3 SCC 259

to submit that the complaint cannot be quashed merely

because one or two ingredients of the offences have

not been stated in detail. Reliance is also placed on

the decision of the Supreme Court in the case of Dr.

Laksman versus State of Karnataka and Ors. reported

in (2019) 9 SCC 677 to submit that mere filing of the

complaint under Section 138 of the Negotiable

Instruments Act is no ground to quash the

proceedings. Learned Advocate Mr. Trivedi has also

relied upon the decision of the State of M.P.

Page 23 of 28
R/CR.RA/213/2016 CAV JUDGMENT

versus S.B. Johari reported in (2000) 2 SCC 57 to

submit that the Court has to only see at the time of

framing charge as to whether any prima facie case was

made out against the accused to proceed against the

accused, and cannot appreciate the evidence or

material produced by the prosecution. Learned

Advocate Mr. Trivedi had lastly distinguished the

judgments relied upon by the learned Advocate Mr.

Thakkar for the petitioners and submitted that none

of the said judgments had any application to the

facts of the present case.

17. In the opinion of the Court, the law as regards

the issue of framing the charge against the accused

is quite well settled. The Supreme Court while

considering Section 227 of Cr. P.C., laid down

following principles in case of Union of India Vs.

Prafulla Kumar Samal, reported in (1979) 3 SCC 4 :

"10. Thus, a consideration of the authorities
mentioned above, the following principles
emerge:

(1) That the Judge while considering the
question of framing the charges under
Section 227 of the Code has the undoubted
power to sift and weigh the evidence for
the limited purpose of finding out whether
or not a prima facie case against the accused

Page 24 of 28
R/CR.RA/213/2016 CAV JUDGMENT

has been made out.

(2) Where the materials placed before the
Court disclose grave suspicion against the
accused which has not been properly
explained the Court will be fully justified
in framing a charge and proceeding with
the trial.

(3) The test to determine a prima facie case
would naturally depend upon the facts of each
case and it is difficult to lay down a rule of
universal application. By and large however
if two views are equally possible and the
Judge is satisfied that the evidence produced
before him while giving rise to some
suspicion but not grave suspicion
against the accused, he will be fully within
his right to discharge the accused.

(4) That in exercising his jurisdiction under
Section 227 of the Code the Judge
which under the present Code is a
senior and experienced court cannot act
merely as a Post Office or a
mouthpiece of the prosecution, but has
to consider the broad probabilities
of the case, the total effect of the
evidence and the documents produced
before the Court, any
basic infirmities appearing in the case and
so on. This however does not mean that
the Judge should make a roving
enquiry into the pros and cons of the matter
and weigh the evidence as if he was
conducting a trial.”

18. In the case of State of M.P. versus S B Johari

and Ors. (supra), the Supreme Court held that at the

stage of framing of charge the Court has to prima

facie consider whether there is sufficient ground for

Page 25 of 28
R/CR.RA/213/2016 CAV JUDGMENT

proceeding against the accused. The Court is not

required to appreciate the evidence and arrive at the

conclusion that the materials produced are sufficient

or not for convicting the accused. If the Court is

satisfied that prima facie case is made out for

proceeding further, then a charge has to be framed.

The precise observations made by the Supreme Court

in the said case are reproduced as under:

"4. In our view, it is apparent that the entire
approach of the High Court is illegal and
erroneous. From the reasons recorded by the High
Court, it appears that instead of considering
the prima facie case, the High Court has
appreciated and weighed the materials on record
for coming to the conclusion that charge against
the respondents could not have been framed. It
is settled law that at the stage of framing the
charge, the Court has to prima facie consider
whether there is sufficient ground for
proceeding against the accused. The Court is not
required to appreciate the evidence and arrive
at the conclusion that the materials produced
are sufficient or not for convicting the
accused. If the Court is satisfied that a prima
facie case is made out for proceeding further
then a charge has to be framed. The charge can
be quashed if the evidence which the prosecutor
proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is
challenged by cross examination or rebutted by
defence evidence, if any, cannot show that
accused committed the particular offence. In
such case, there would be no sufficient ground
for proceeding with the trial. In Niranjan Singh
Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya
and Others reported in (1990) 4 SCC 76, after
considering the provisions of Sections 227 and

Page 26 of 28
R/CR.RA/213/2016 CAV JUDGMENT

228 Cr.P.C., the Court posed a question, whether
at the stage of framing the charge, trial court
should marshal the materials on the record of
the case as he would do on the conclusion of the
trial? The Court held that at the stage of
framing the charge inquiry must necessarily be
limited to deciding if the facts emerging from
such materials constitute the offence with which
the accused could be charged. The Court may
peruse the records for that limited purpose, but
it is not required to marshal it with a view to
decide the reliability thereof. The Court
referred to earlier decisions in State of Bihar
v. Ramesh Singh (1977) 4 SCC 39, Union of India
v. Prafulla Kumar Samal (1979) 3 SCC 4 and
Supdt. & Remembrancer of Legal Affairs, West
Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274,
and held thus:

"From the above discussion it seems well
settled that at the Sections 227228 stage
the court is required to evaluate the
material and documents on record with a view
to finding out if the facts emerging
therefrom taken at their face value disclose
the existence of all the ingredients
constituting the alleged offence. The court
may for this limited purpose shift the
evidence as it cannot be expected even at
the initial stage to accept all that the
prosecution states as gospel truth even if
it is opposed to common sense or the broad
probabilities of the case."

19. In the instant case, the trial Court from the

material on record had found that there was

sufficient material against the petitioners – accused

to frame charge against them and that the charge

against the accused could not be said to be

Page 27 of 28
R/CR.RA/213/2016 CAV JUDGMENT

groundless so as to discharge them under Section 239

of Cr. P.C.. This Court at this juncture is not

required to evaluate the material and documents on

record in detail. Suffice it to say that the

material on record prima facie discloses the

existence of the ingredients constituting the alleged

offences under Section 406 and Section 420 of IPC.

The impugned order passed by the Court below is just

and proper and does not call for any interference.

20. In that view of the matter, the present Revision

Application being devoid of merits, is dismissed. It

appears that the trial has not proceeded further

because of the pendency of this Revision Application

though there was no stay granted by this Court.

Hence, the trial is directed to be expedited. The R

& P, if any, be sent back forthwith.

Sd/

(BELA M. TRIVEDI, J)
SINDHU/V.V.P. PODUVAL

Page 28 of 28