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PETITIONER: NARENDER KUMAR JAIN

       Vs.

RESPONDENT: STATE OF GUJARAT & ANR.

DATE OF JUDGMENT:       24/08/1999

BENCH: Syed Shah Mohammed Quadri, K.Vankataswami

JUDGMENT:

SYED SHAH MOHAMMED QUADRI,J.

Leave is granted.

     The  second  respondent preferred a complaint  against the  appellant  and three others on October 12,  1994.   The appellant  is accused No.4 in Criminal Case No.6096 of  1994 in the Court of Chief Judicial Magistrate, Jamnagar.  Though the  complaint was filed under Sections 406, 416,420,34  and 114  of  IPC, the learned Chief Judicial  Magistrate  issued summoning  order  only under Section 406 IPC on October  17, 1994.   That  order required the appellant to be present  in the court on November 4, 1996.  Two of the accused, No.1 and No.2  challenged the summoning order by filing Misc.Criminal Application  No.580 of 1995 before the High Court which  was dismissed  on  February 28, 1995.  Feeling  aggrieved,  they preferred Special Leave Petition No.2145 of 1995 before this court   which  was  also  dismissed   on  July   14,   1995. Thereafter,  the  appellant  challenged the  said  summoning order  of  learned Chief Judicial Magistrate in revision  in the   court  of  the   learned  Additional  Sessions  Judge, Jamnagar,  in Criminal Revision Petition No.10 of 1997.   On dismissal  of  that  petition,  he  filed  Special  Criminal Application No.266 of 1998 in the High Court of Gujarat.  By order  under appeal, the High Court dismissed the  petition. The  appellant  has thus challenged that order of  the  High Court  in  this  appeal.    Mr.J.C.Gupta,  learned   counsel appearing  for the appellant, submits that the appellant was only  a General Power of Attorney holder of the partners who had become owner of the goods;  there is no case against the appellant  under  Section 406, IPC so the High Court  should have quashed the proceedings.  Heard learned counsel for the respondents.

     On  the  facts of this case, in our view, no  case  is made  out.   The  learned Additional  Sessions  Judge  after examining  the  facts in detail and taking note of the  fact that  similar petition by accused Nos.1 and 2 was  dismissed by  the  High  Court and the Special  Leave  Petition  filed against  that order of the High Court was also dismissed  by this  Court did not consider it appropriate to interfere  in the  order of issuing summons.  The High Court in the  order under  appeal,  noted that it was only after two  years  (in fact it was more than three years) of dismissal of challenge by  accused Nos.1 and 2 against the summoning order by  this court,   the  appellant  filed   the  revision  before   the

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Additional Sessions Judge.  On considering all the facts and circumstances   of  the  case  the   High  Court  found   it inappropriate  to  interdict  the proceedings.   We  do  not consider it appropriate, at this stage, to examine the facts to  find  out  whether prima facie case  under  Section  406 I.P.C.  is made out to issue a summon against the appellant. There  is  no illegality in the impugned order of  the  High Court.  The appeal is, therefore, dismissed.