Supplementary affidavit filed on behalf of the revisionists, is taken on record. Heard learned counsel for the revisionists, learned A.G.A. for the State and perused the record.
This revision has been directed against the order dated 3.2.2010 passed by the Special Judge (Gangster Act) Gonda in Gangster Case No. 22 of 2009, State Vs. Amresh Dutt Pandey alias Lala Pandey and two others, whereby the discharge application of the accused- revisionist has been rejected and against the order dated 9.9.2009, whereby the charges of sections 406, 419, 420, 467, 468, 471 I.P.C., section 138 of Negotiable Instruments Act and 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act were framed against the accused-revisionists.
It has been submitted that, according to prosecution case, the complainant opposite party no. 2 and several other persons had invested their monies with one Nirmesh Dutt Pandey, who was running banking business in the name of Sinduri Appllo Firm, with the expectation of earning interest but when the complainant demanded his money back, despite false assurance, the money was not returned to him. On the basis of the report of the complainant a case under sections 406, 419, 420, 467, 468 and 471 I.P.C. was registered and a charge sheet was filed against Nirmesh Dutt Pandey and others. Later on, a supplementary charge sheet has been filed under the aforesaid sections and under section 138 of Negotiable Instruments (N.I.) Act and 3(1) U.P. Gangster Act against the revisionists.
It has been pointed out that Special Judge (Gangster Act) Gonda took cognizance on the charge sheet and framed the charges of the aforesaid sections against the revisionists.
The contention of the revisionists is that the offence of section 138 of the N.I. Act is not cognizable by police and cognizance of the said section can be taken only on a complaint and that too after complying with certain mandatory requirements. Besides that, there is no allegation that any cheque was given by any of the revisionists which was dishonoured. It is also contended that there is no evidence against the revisionists, even prima facie, to presume the commission of the offences of sections 419, 467, 468 and 471 I.P.C. but despite that the trail Judge has rejected the discharge application and framed the charges of the aforesaid sections.
Issue notice to opposite party no. 2 returnable at an early date. Counter affidavit may be filed within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List after the service of notice.
Till the next date of listing, further proceedings of the said Gangster case so far as it relates to the accused revisionists Indradev Pandey @ Pullu and Jhinkan @ Rajesh Dutt Pandey, shall remain stayed.
Order Date :- 2.4.2010 Rizvi