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1996 DIGILAW 434 (CAL)

KUCHIL KUMAR NANDI v. M/S. MODI CEMENT LTD.

1996-11-21

ASISH BARAN MUKHERJEE

body1996
ASISH BARAN MUKHERJEE, J. ( 1 ) THREE revisional applications, all preferred under Section 482, Cr. P. C. being Criminal Revision Nos. 2302 of 1995, 2303 of 1995 and 2304 of 1995 have been heard together. These revisional applications arises out of complaint case Nos. C-1695 of 1994, C-1699 of 1994 and C-1694 of 1994, all pending before the Metropolitan Magistrate, 11th Court, Calcutta. ( 2 ) THE petitioner in all the three revisional applications figured as accused in a case under Section 138 Negotiable Instrument Act, hereinafter referred to as the N. I. Act started at the instance of the opposite party in all the revisional applications. The allegations against the present petitioner in the three criminal cases in short is that the cheques issued by the petitioner in favour of the complainant company on different dates for different sums being dues on account of business transaction between the parties were dishonoured by the concerned Bank when presented by the complainant O. P. on the ground "payment stopped by the drawer". Thereafter, the complainant within the stipulated period issued notice on the accused petitioner demanding payment of the sums mentioned in the cheques. The letters were received by the accused petitioner in time but no payment was made. Accordingly, the complainant O. P. instituted the criminal cases against the accused petitioner. ( 3 ) XXX xxx xxx ( 4 ) THE defence of the petitioner is that an amount of about Rs. 75 lakhs is lying due and unpaid as service charges and commission of the petitioner from the complainant company and in spite of the repeated request they have failed to effect any payment. Accordingly in order to protect the interest the petitioner stopped the payment of the cheques earlier issued in favour of the company. In view of the outstanding dues the complainant company cannot claim to get any amount from petitioner. It is also his case that the complaint earlier instituted Bankura P. S. case No. 106 of 1994 dated 7-6-94 against the petitioner for offences under Sections 403/406/408/409/471a/120b/420/35 of the I. P. C. It is alleged that the subject-matter of the three criminal cases pending before the Court of the Metropolitan Magistrate, Calcutta, namely, three cheques issued by the petitioner have also been included in the said Bankura P. S. case. The petitioner moved a revisional application challenging the validity of the F. I. R. in this Court and obtained an order on 22-7-94 staying all further proceedings of the said Bankura P. S. case. It is alleged that the complainant instituted the present cases by suppressing the Bankura P. S. case. ( 5 ) AFTER appearance in the Court of the Metropolitan Magistrate, an application was made on behalf of the petitioner for stay of the criminal proceedings till the disposal of the Bankura P. S. case which prayer was, however, refused by order dated 6-4-95. The allegation of the petitioner is that the complaint did not make out an offence under Section 138 N. I. Act, that the dispute between the parties is essentially of a civil nature and complainant instituted the criminal case by distorting the facts. Accordingly, the petitioner has prayed for quashing of all the three criminal proceedings before the Metropolitan Magistrate. ( 6 ) I have heard the submissions made by the learned Advocates representing the both parties. At the very outset it is conceded by the Ld. Advocate for the petitioner that the complaint cases under Section 138 N. I. Act were instituted in time. It is contended that notwithstanding such institution the complaint in all the three criminal proceedings, prima facie, do not make out an offence under Section 138 N. I. Act. Apart from arguing that the dispute is essentially of a civil nature it has also been argued that the inclusion of the subject-matter of the three criminal proceedings pending before the Metropolitan Magistrate, in the Bankura P. S. case and staying of the proceeding of the said case by an order of this Court are factors which goes a long way to prove the mala fide intention on the part of the complainant since all these facts were completely suppressed in the complaints of the proceedings. ( 7 ) THE Ld. Advocate has also relied on a number of decisions of different Courts in support of his contention that it is a fit case in which the criminal proceedings should be quashed since they do not disclose even prima facie commission of an offence under Section 138 of the N. I. Act. It is submitted that in the absence of the petition of complaint disclosing an offence the taking of cognizance by the Magistrate under Section 190 (1) (a), Cr. It is submitted that in the absence of the petition of complaint disclosing an offence the taking of cognizance by the Magistrate under Section 190 (1) (a), Cr. P. C. is bad in law and as such the proceedings should not be allowed to run being an abuse of process of the Court. ( 8 ) ON the other hand, it has been argued on behalf of the opposite party that the criminal cases being at their very early stage, jurisdiction under Section 482, Cr. P. C. should not be invoked by this Court. The factual position, so far as they relate to the pendency of criminal, as well as civil proceedings between the parties have not been disputed. As a matter of fact the position cannot also be disputed since as per the annexure to the revisional application at least two Title Suits, one being 2119 of 1994 pending in the City Civil Court, Calcutta and Title Suit No. 140 of 1994 is pending before the Assistant District Judge, Bankura, both the suits arise out of disputes between the parties over their business transaction. It is not also disputed that the Bankura P. S. case against the present petitioner has been stayed by a Bench of this Court. ( 9 ) THE Ld. Advocate for the petitioner has relied on a number of decisions. Reference has been made to a decision reported in (1996) 2 SCC 739 : (1996 AIR SCW 840) in that case the cheque was dishonoured with the remarks "refer to the drawer, instructions for stoppage of payment, exceeds arrangement" were there. It was held that the ingredients of Section 138 N. I. Act are there. Reference has also been made to a decision reported in AIR 1977 SC 1754 : (1977 Cri LJ 1146) in support of the contention that in the event of complaint, not disclosing an offence the order of taking cognizance can be quashed by the High Court in exercise of its inherent power. Reference has also been made to a decision reported in AIR 1977 SC 1754 : (1977 Cri LJ 1146) in support of the contention that in the event of complaint, not disclosing an offence the order of taking cognizance can be quashed by the High Court in exercise of its inherent power. In the decision reported in 1994 Criminal Law Journal, 674 (Ker), it has been held that in the event of a cheque been dishonoured and the Bank returning the same with the endorsement "payment stopped", complaint filed without alleging the circumstances leading to such dishonour is not maintainable in the absence of allegations of ingredients of the offences and under the circumstances cognizance also cannot be taken of the offence. Reference has also been made in an aforesaid decision to a decision reported in AIR 1992 SC 604 : (1992 Cri LJ 527) in support of the contention that in the event of the allegations made in the complaint, even when taken at their face value not disclosing prima facie any offence, inherent power need be exercised to quash the said proceedings. It has also been held that mere return of the cheque with the endorsement "payment stopped by the drawer", there being no allegation that the amount standing to credit of the drawer was insufficient to honour the cheque, ingredients of Section 138 N. I. Act is non-existent. The decision reported in 1993 Cri LJ 2486 (Ker) is also to the same effect. So also the decision reported in 1993 Cri LJ 744 (Punj and Har ). The decision reported in (1996) 1 JT (SC) 643 : (1996 AIR SCW 5840) is based on fact which is completely different from the present one. In that case the endorsement of the Bank is completely different from the present one, besides in the present case the complaints do not mention anything to show that the amount standing to the credit of the drawer is not sufficient to satisfy the cheques. As a matter of fact a close scrutiny of the complaints which are exactly of the same time, categorically says that the cheques were not honoured for the reason "payment stopped by the drawer". There is no allegation in any of the complaints that there was insufficiency of fund to the credit of the drawer. As a matter of fact a close scrutiny of the complaints which are exactly of the same time, categorically says that the cheques were not honoured for the reason "payment stopped by the drawer". There is no allegation in any of the complaints that there was insufficiency of fund to the credit of the drawer. It is not that Section 138 N. I. Act can be invoked in every case of dishonour of cheque but there are only two instances when such a dishonour attract the said Section, namely, (1) because the amount of the money standing to the credit of the drawer is insufficient to honour the cheque. (2) It exceeds the amount arranged to be paid from that account by an agreement made with the Bank. Only in these two cases Section 138, N. I. Act can be invoked in the event of dishonour of a cheque. 1n the present case there being no such allegation in the complaint, there is no prima facie offence under Section 138 of the N. I. Act. As such, the Metropolitan Magistrate, was not competent to take cognizance of the offence under Section 190 (1) (a), Cr. P. C. In the absence of prima facie ingredients, it is a fit case in which the principles of law enunciated in AIR 1992 SC 604 : (1992 Cri LJ 527) should come into play. In other words, complaint not disclosing a prima facie offence far which cognizance has been taken is an abuse of process of the Court and as such the inherent power need be exercised to quash such a criminal proceeding. ( 10 ) I have already stated that the disputes on account of business transaction between the parties have been the subject matter of at least a couple of civil suits, both of which are pending. There is also another P. S. case as I have stated earlier which was instituted earlier in point of time that the present proceedings and the subject matter of the present proceedings have also been included therein. For all these reasons, I come to the conclusion that it is a fit case in which the inherent power need he exercised. ( 11 ) ACCORDINGLY, all the three revisional applications stand allowed on contest and the complaint cases being C-1694 of 1994, C-1695 of 1994 and C-1699 of 1994 pending before the Ld. For all these reasons, I come to the conclusion that it is a fit case in which the inherent power need he exercised. ( 11 ) ACCORDINGLY, all the three revisional applications stand allowed on contest and the complaint cases being C-1694 of 1994, C-1695 of 1994 and C-1699 of 1994 pending before the Ld. Metropolitan Magistrate, 11th Court, Calcutta stand quashed. Order accordingly.