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2004 DIGILAW 1006 (JHR)

RAKESH JAIN v. STATE OF jharkhand

2004-09-30

AMARESHWAR SAHAY

body2004
Judgment : ( 1 ) HEARD Mr. Indrajeet Sinha, learned counsel appearing for the petitioner and the learned counsel for Opposite Parties. ( 2 ) THE Opposite Party No. 2 Mr. Rakesh ranjan Srivastava, Managing Director of m/s. Computer Media (India) Consultants (P) Ltd. filed a complaint case before the chief Judicial Magistrate, Dhanbad, against the petitioner Rakesh Jain, praying therein to take cognizance of the offence under section 138 of the Negotiable Instruments Act and Sections 406/420 of the Indian Penal code as the accused (petitioner) committed the aforesaid offence on the basis of the fact stated in the Complaint Petition. ( 3 ) THE learned Chief Judicial Magistrate directed the Police to institute First Information Report under the provisions of S. 156 (3) of the Code of Criminal Procedure. Accordingly, Bank More, Dhanbad Police station registered a First Information Report against the petitioner under sections 406 and 420 of the Indian Penal Code and under section 138 of the Negotiable Instruments Act. ( 4 ) THE petitioner has prayed for quashing of the First Information Report mainly on the ground that the allegations made in the F. I. R. even if they are accepted in its entirety do not constitute any offence at all and at best the allegations set out therein disclose liability of a civil nature and, therefore, the First Information Report is liable to be quashed. ( 5 ) THE allegations made in the F. I. R. as it appears are that the informant, i. e. the Managing Director of M/s. Computer Media (India) Consultants (P) Ltd. , a firm which was dealing in Computer jobs, the accused petitioner Rakesh Jain, who was looking for a company to do a job for medical transcription, approached the informant and got him ready to perform the job by inducing him that he shall give a minimum 5000 lines a day for medical transcription and for the same the informant shall be paid 4 US cents per line and the payment will be made on 16th of every month. It is said that as per the direction of the petitioner Rakesh Jain, the informant increased his infrastructure to meet the requirement of job by spending lacs of rupees. It is said that as per the direction of the petitioner Rakesh Jain, the informant increased his infrastructure to meet the requirement of job by spending lacs of rupees. A memorandum of understanding was signed between the two on 6-2-2002 to the effect that the petitioner will act as contractor for medical transcription for procuring a minimum of 5000 lines a day from its principals based in USA. Accordingly, the informant started performing the job of the accused petitioner but the informant was not provided with a minimum of 5000 lines a day as agreed rather it never increased more than 1000 lines a day, for which the informant complained but the accused Rakesh Jain gave false assurance that very soon he shall be given 5000 lines as agreed. It is further stated that the accused was also not acting as per the memorandum for understanding with regard to the payment also and in course of time the dues against the accused reached to the tune of Rs. 2,02,681/ -. On repeated reminders for payment, the accused-petitioner issued four cheques worth Rs. 2,34,954/ -. Two cheques were deposited in the month of July, 2002 for encashment but were dishonoured due to insufficient funds in the account. The accused was informed by the informant, who apologized and promised that he will arrange the payment of the cheques, which were dishonoured and also paid a sum of Rs. 32,273/- in cash. The informant produced the remaining two cheques in the Bank for encashment on 24-8-2002 but with the same result and both the cheques were dishonoured. Thereafter, the informant gave a notice through his lawyer to the accused-petitioner giving 15 days time to make the payments, consequent thereto the informant was asked by the accused-petitioner to come over to Bangalore on 18th September 2002 to collect his payment. Informant reached Bangalore on 20th september 2002, met the accused and asked for payment but he promised to pay within two/three days. The informant stayed at bangalore for three days and thereafter, he met the accused but again he was asked to come on 27-9-2002 with the promise that on that day he will be paid his dues. Informant reached Bangalore on 20th september 2002, met the accused and asked for payment but he promised to pay within two/three days. The informant stayed at bangalore for three days and thereafter, he met the accused but again he was asked to come on 27-9-2002 with the promise that on that day he will be paid his dues. But on 27-9-2002 the accused again asked for some more time for payment and then the informant asked the accused to dissolve the memorandum for understanding as in the present situation he was not ready to work with him. On 28-9-2002 the accused handed over a typed letter to the informant regarding dissolution of memorandum for understanding seeking three months time for making payment of the dues amount to the tune of Rs. 3,53,681/ -. The informant ultimately returned to Dhanbad. On the above facts the informant alleged that the accused dishonestly induced him to do the job of medical transcription and thereby cheated him by not making payment and by not complying the terms of memorandum for understanding and he also committed criminal breach of trust. ( 6 ) MR. Indrajeet Sinha, learned counsel appearing for the petitioner submitted that the facts set out in the First Information report do not constitute an offence under section 420, I. P. C. , as there has been no wrongful loss to O. P. No. 2 nor there is any allegation that the informant was ever induced fraudulently to do the job. At best it is a case of breach of contract and failure to make payment and, therefore, no offence under section 420, I. P. C. is made out. ( 7 ) THE learned counsel for the petitioner further submitted that even the ingredients of section 406, I. P. C. is not present in the present F. I. R. and, therefore, the institution of the F. I. R. is absolutely illegal. He further submitted that when the informant has lodged the F. I. R. for commission of the offence under section 138 of the Negotiable instruments Act, which is a special Act, and, therefore, the institution of the case under sections 420 and 406, I. P. C. which is a general Act was bad in law. He further submitted that when the informant has lodged the F. I. R. for commission of the offence under section 138 of the Negotiable instruments Act, which is a special Act, and, therefore, the institution of the case under sections 420 and 406, I. P. C. which is a general Act was bad in law. The learned counsel for the petitioner in support of his submissions has relied on the decision in the case of Ajay Mitra v. State of madhya Pradesh reported in 2003 (3) SCC 11 : ( AIR 2003 SC 1069 ) : (2003 Cri LJ 1249)and in the case of U. Dhar v. State of jharkhand reported in 2003 (2) SCC 219 : ( AIR 2003 SC 974 : (2003 Cri LJ 1224) ). ( 8 ) ON the other hand Mr. Kashyap, learned counsel appearing for O. P. No. 2 submitted that the facts alleged in the F. I. R. /complaint petition definitely make out a case for commission of the offence alleged and the police who has instituted the F. I. R. has statutory right to investigate the case. Therefore, it would not be justifiable for this Court to throttle the investigation at its initial stage. ( 9 ) FROM perusal of the decision of the supreme Court in the case of Ajay Mitra v. State of Madhya Pradesh ( AIR 2003 SC 1069 ): (2003 Cri LJ 1249) (supra), it appears that the Supreme Court has held that a guilty intention is an essential ingredient of the offence of cheating. In other words "mens rea" on the part of the accused must be established before he can be convicted of an offence of cheating. In order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. Unless the complaint showed that the accused has dishonest and fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under section 420 of the Indian Penal Code and it may only amount to "breach of contract. Unless the complaint showed that the accused has dishonest and fraudulent intention at the time the complainant parted with the money, it would not amount to an offence under section 420 of the Indian Penal Code and it may only amount to "breach of contract. " the Apex Court after examining the facts alleged in the F. I. R. /complaint in the case before it came to the conclusion that the allegation made therein even if they are taken at their face value and accepted in their entirety do not constitute any offence as against those appellants and accordingly, quashed the F. I. R. ( 10 ) FROM perusal of the decision of the supreme Court, relied on by the learned counsel for the petitioner, in the case of U. Dhar v. State of Jharkhand (2003 AIR -Jhar HCR 296) (supra), it appears that the apex Court held that on the basis of the allegation made in the complaint petition in the case in hand before it there was no ingredient of section 405, I. P. C. so as to make out a case for commission of the offence under section 406, I. P. C. Accordingly, the apex Court quashed the order by which cognizance was taken against those appellants by the trial Court. ( 11 ) THEREFORE, it is clear that as to whether in a particular case the F. I. R. /complaint or in a particular case the order taking cognizance can be quashed the Court has to apply his judicial mind and has to examine as to whether facts alleged either in the complaint petition or in the F. I. R. or the materials collected during investigation/enquiry under section 202 Cr. P. C. whether make out a prima facie case for commission of any offence or not. The question of quashing of f. I. R. /complaint or an order taking cognizance depends on the facts and circumstances of each and particular case. P. C. whether make out a prima facie case for commission of any offence or not. The question of quashing of f. I. R. /complaint or an order taking cognizance depends on the facts and circumstances of each and particular case. No doubt that if in a given case the facts alleged in the complaint-petition or in the f. I. R. lacks the essential requirements/ingredients for constituting an offence and the allegations made so apparently reveals that the same are so absurd that no prudent man can believe such allegations or in a given case the facts so alleged in the F. I. R. /complaint there is no allegation of commission of an offence but the same only discloses purely a case of civil nature then in that case certainly the Court may quash the F. I. R. / complaint. But when the Court finds on the basis of the allegations made in the F. I. R. / complaint, for investigation/enquiry the prima facie case is made out then in that case the F. I. R. /complaint on the basis of the allegation made therein cannot be quashed at its initial stage. ( 12 ) THE Supreme Court while dealing with a case for quashing of the F. I. R. , in the case of Rajesh Bajaj v. State, NCT of Delhi reported in 1999 (3) SCC 259 : ( AIR 1999 SC 1216 ) : (1999 Cri LJ 1833) held as follows:-"it is not necessary that a complaint should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an F. I. R. (a step which is permitted only in extremely rare cases)the information in the complaint must be so bereft of even the basic facts, which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal this court laid down the premise on which the f. I. R. can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder (SCC p. 379, para-103) : "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the f. I. R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim and caprice. " ( 13 ) IN the said decision it was further held that merely because the facts narrated in the present complaint reveals a commercial or money transaction, is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions and further that criminal proceeding cannot be quashed because it is too premature a stage for High Court to step in and stall the investigation by declaring that it is a commercial transaction simpliciter wherein no semblance of criminal offence is involved. ( 14 ) THE Supreme Court in the case of satvinder Kaur v. State reported in (1999) 8 scc 728 : ( AIR 1999 SC 3596 ) : (1999 Cri lj 4566), has held that the legal position is well settled that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the F. I. R. , prima facie, discloses the commission of an offence the court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offence. In the said very decision while dealing with the exercise of power under section 482, cr. P. C. it was held that for the purpose of using its power under section 482, Cr. P. C. to quash the First Information Report or a complaint, the High Court would have to proceed entirely on the basis of allegations made in the complaint or the document accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. ( 15 ) ACCORDINGLY, in view of the facts alleged in the present F. I. R. and the law laid down by the Supreme Court, which have been discussed above, I have carefully examined the allegations made in the F. I. R. / complaint of the present case and on consideration of the same, I am of the view, that certainly a prima facie case for investigation of the case by the Police is made out and, therefore, I do not find it to be a fit case in which the F. I. R. should be quashed. I have deliberately not made any comment regarding the correctness or otherwise of the allegations made in the present F. I. R. Accordingly, I find no merit in this application and thus is dismissed. Application dismissed. --- *** --- .