HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 5036/2017

Yashmani Sirothia S/o Shri S.n. Sirothia, Aged About 47 Years, R/o 109, Bai Ka Bagh, Allahbad, Uttar Pradesh.

----Petitioner

Versus

• 1. State Of Rajasthan Through Pp.
• 2. M/s Jai Kishan Pipe Industries, Plot No.g-110, Riico Industrial Area, Behror, District Alwar, Raj., Through Proprietor Shri Ramchandra Yadav S/o Shri Jagmal Singh B/c Aheer, R/o New Bus Stand, Shakti Vihar Colony, Behror, District Alwar, Raj.

----Respondents

Connected With

S.B. Criminal Misccellaneous (Petition) No. 5129/2016

• 1. Ms Alliance Corporation Office-109, Bai Ka Bagh Allahabad U.p. Partner Smt. Sulkha Sirothia Yash Mani Sirothia.
• 2. Smt. Sulekha Sirothia, R/o 109, Bai Ka Bah Allahabad U.p.

----Petitioners

Versus

• 1. The State Of Rajasthan Through P.p.
• 2. M/s Jaykishan Pipe Industries Office-G-1, Proprietor Shri Ramchandra Yadav Mobile No. 9251414614, Plot No.123, Riico Industrial Area, Bahror, Tehsil Behror, District Alwar (Rajasthan)

----Respondents

For Petitioner(s)	:	Mr. Vijay Yadav
For Respondent(s)	:	Mr. N.S. Dhakar, PP for State<br>Mr. Brijesh Yadav, for respondent<br>No.2

HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Order

12/04/2018

S.B. Criminal Misc. Petition No.5036/2017:

Present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No.0323/2017, registered at Police Station Behror, District Alwar for offences under Sections 420, 406 and 120B IPC.

Learned counsel for the petitioner has contended that it is wrongly alleged by the complainant that the petitioner was authorized salesman and thus, in his capacity he has misappropriated the goods and sale proceeds thereof. Learned counsel, inter alia, further contends that it is stated in the FIR that a settlement was arrived at and petitioner had issued a cheque. Learned counsel submits that once the cheque was issued after settlement of accounts, the offence of criminal misappropriation has come to an end.

Learned counsel for respondent No.2 has submitted that the petitioner from 1.4.2013 to 26.3.2015 was in the employment of the petitioner. Goods were entrusted to him and he has misappropriated the goods worth Rs.53,94,920/-.

Whether petitioner was a salesman or not is a disputed question of fact which require evidence. Whether goods were handed over to the petitioner or not is also a disputed question of fact, whether the petitioner had misappropriated the goods is also a disputed question of fact, whether the cheque was lost or not is also a disputed question of fact especially when the petitioner had denied issuance of the cheque and has taken a plea that the said cheque was lost. Disputed questions of fact which require evidence cannot be determined by this court in a petition under Section 482 Cr.P.C. as the same require evidence. Truth and veracity of the allegation shall be determined during the course of the trial.

Hence, the present petition, being devoid of merit, is dismissed.

S.B. Criminal Misc. Petition No.5129/2016:

Present petition has been filed under Section 482 Cr.P.C. seeking quashing of Complaint No.23/494/2016 pending in the court of Additional Chief Judicial Magistrate, Behror under Section 138, Negotiable Instruments Act.

It is averred in the complaint that the petitioner had issued a cheque amounting to Rs.1,04,39,500/- and the said cheque, on presentation, had bounced because of insufficiency of funds in the account of the petitioner.

Learned counsel for the petitioner has submitted that the petitioner had never issued the cheque. The same was lost. Petitioner lodged an FIR at Allahabad and furthermore, he informed the Bank that the cheque has been lost. Therefore, the learned counsel for the petitioner contends that a false complaint has been instituted. It is further submitted that the petitioner had lodged an FIR in Uttar Pradesh regarding loss and misuse of the cheque by the complainant-respondent.

Whether the cheque was issued in lieu of settlement or it was lost is a disputed question of fact and require evidence. Therefore, the disputed question of fact cannot be examined in a petition under Section 482 Cr.P.C.

At this juncture, learned counsel for the petitioner has submitted that the offence under Section 138, Negotiable Instruments Act, is a bailable offence. It is submitted that the notice of accusation is to be served upon the petitioner and during trial it will be decided whether petitioner is to be tried in summary manner or by following procedure of summons case.

Learned counsel contends that the trial court should not have issued non-bailable warrants against the petitioner. Learned counsel for the respondent complainant has submitted that inspite of various efforts made by the trial court, the petitioner till today has not caused appearance before the trial court, hence, the trial court was constrained to issue non-bailable warrants.

Considering the nature of offence, fact that the offence is bailable and petitioner is to be tried either in summary manner or by following procedure of summons case, this court is of the view that sending the petitioner behind the bars will not be in the interest of justice.

Hence, it is ordered that if the petitioner appear before the trial court on or before 7.5.2018, the petitioner shall be released by the trial court on bail. However, if the petitioner fail to appear before the trial court, non-bailable warrants issued against the petitioner shall operate and law shall take its own course.

(KANWALJIT SINGH AHLUWALIA),J

Govind/