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2004 DIGILAW 1786 (RAJ)

Vishnu Purohit v. State of Rajasthan

2004-12-14

H.R.PANWAR

body2004
Judgment H.R. Panwar, J.-This petition under Section 482, CrPC is directed against the impugned order dated 28.08.2004 passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar (for short, "the revisional Court" hereinafter) in Criminal Revision Petition No. 26/2004, by which the revisional Court dismissed the revision petition filed by the petitioner and affirmed the order dated 20.02.2004 passed by the learned Civil Judge (Junior Division) and Judicial Magistrate No. 1, Sri Ganganagar (for short, "the trial Court" hereinafter) taking cognizance against the petitioner for the offence under Section 420, IPC. 2. The facts of the case, relevant and necessary for disposal of this criminal miscellaneous petition are that on 111.1999, complainant Najam Singh lodged an FIR with Police Station, Jawahar Nagar, Sri Ganganagar alleging therein that accused-petitioner Vishnu Purohit contacted him and told that he is doctor by profession having a Laboratory and Blood Bank Licence and induced him to advance a loan of Rs. 3 lacs on interest. The accused-petitioner gave him a post-dated cheque. On the stipulated date, when the complainant asked the accused-petitioner for encashing the cheque, the accused started killing time. Thereafter, the complainant came to know that neither the petitioner is a doctor, nor he is having a licence for blood bank, nor the alleged laboratory building belongs to the petitioner. On this complaint, the police registered a case and after investigation, filed challan against the accused-petitioner for the offence under Section 420, IPC. The learned trial Court, after hearing the parties, vide order dated 20.02.2004, framed the Charge against the petitioner for the offence under Section 420, IPC. Aggrived with this order of the trial Court, accused-petitioner preferred the revision petition before the learned Revisonal Court and the Revisional Court, vide impugned order dated 28.08.2004, dismissed the revision petition and affirmed the order of the trial Court framing charge against the petitioner. Hence, this miscellaneous petition. 3. Heard learned Counsel for the petitioner and the learned Public Prosecutor. Perused the impugned orders passed by the Courts below. 4. It has been contended by the learned Counsel for the petitioner that instead of filing a complaint for the offence under Section 138 of the Negotiable Instrument Act, the complainant has filed the FIR for the offence under Section 420, IPC. Perused the impugned orders passed by the Courts below. 4. It has been contended by the learned Counsel for the petitioner that instead of filing a complaint for the offence under Section 138 of the Negotiable Instrument Act, the complainant has filed the FIR for the offence under Section 420, IPC. It has further been contended that the ingredients of the offence under Section 420, IPC are not made out and the Courts below have erred in law and on facts in framing charge under Section 420, IPC against the petitioner. In support of his contention, learned Counsel for the petitioner has placed reliance on a decision of this Court in Shakuntala Vyas vs. State of Rajasthan & Anr., 1996 CrLR 829 (Raj), wherein the proceedings were quashed for want of necessary ingredients constituting the offence under Sections 415 and 420, IPC. Learned Public Prosecutor, refuting the arguments advanced by the learned Counsel for the petitioner, has supported the impugned orders. 5. The respondent-complainant has come with the case that the accused-petitioner pretending himself to be a doctor running a laboratory and having a blood-bank licence, fraudulently and dishonestly induced the complainant to deliver a sum of Rs. 3 lacs, though as a loan, against the post-dated cheque with the intention not to repay the amount in question, for which he closed his bank account. The post-dated cheque given to the complainant was presented to the bank, which was dishonoured with the endorsement that the petitioner has closed the account, meaning thereby that at the closure of the account, there was no balance with the bank. 6. In M/s. OPTS Marketing Pvt. Ltd. & Ors. The post-dated cheque given to the complainant was presented to the bank, which was dishonoured with the endorsement that the petitioner has closed the account, meaning thereby that at the closure of the account, there was no balance with the bank. 6. In M/s. OPTS Marketing Pvt. Ltd. & Ors. vs. State of Andhra Pradesh & Ors., 2001 CrLJ 1489 , a Full Bench of Honble Andhra Pradesh High Court, while dealing with a question of dishonour of a cheque and prosecution under Section 420, IPC, held as under:- "Even after introduction of Section 138 of the Negotiable Instruments Act, prosecution under Section 420, IPC is maintainable in case of dishonour of cheques or post-dated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplied earlier, if the charge-sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation. Private complaint or FIR alleging offence under Section 482, CrPC for dishonour of cheques or post-dated cheques cannot be quashed under Section 420, IPC if the averments in the complaint shows that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation, issued the cheque which was not honoured." 7. In Rajesh Bajaj vs. State of NCT of Delhi, 1999 (3) SCC 259 , the Honble Supreme Court held that if the averments in the complaint prima facie make out a case for investigation, High Court cannot quash the complaint merely because one or two ingredients of the offence have not been stated in detail, since many a cheating is committed in the course of commercial or monetary transactions, and while making a reference to Illustration (1) of Section 415, IPC, held as under:- "The crux is the intention of the person who induced the victim of his representation and the nature of the transaction, and if the averments prima facie make out a case for investigation, the complaint cannot be quashed." 8. In Keshavji vs. Emperor, AIR 1930 Bom. In Keshavji vs. Emperor, AIR 1930 Bom. 179, a Division Bench of Bombay High Court held that in case of prosecution launched under Section 420, IPC in respect of dishonour of cheque, prosecution has to establish facts which prima facie point to the conclusion that the failure to meet the cheque was not accidental but was a consequence expected and was intended by the accused, and then it is for the accused to establish facts in his favour which specifically are within his knowledge, relating to which the prosecution cannot be expected to have information. 9. To rope an accused for cheating due to cheque drawn and issued by him and later bounced an account of closure of account, initial dishonest intention at the time of issuing the cheque is sine a qua non. In a case of dishonour of cheque, for constituting an offence under Section 420, IPC, it is essential that there must be an element of desception in the transaction. To deceive is to induce a man to believe that a thing is true which is actually false and which person practising the deceit knows or believes to be false. It must also be shown that there exists a fraudulent and dishonest intention at the time of commission of the offence. In the instant case, the petitioner, knowing well that he is neither a doctor nor having a blood bank licence and the laboratory building, dishonestly and fraudulently induced the respondent-complainant to advance him a loan against a post-dated cheque will knowing that there appears hardly any amount and if at all any amount was there, by closing the account, the petitioner brought the amount of balance to nil. Thus, prima facie, the element of deceiving the complainant exists from the case as set up by the complainant. 10. More so, the scope of Sub-section (3) of Section 397(3), CrPC and inherent powers of the High Court under Section 482, CrPC came to be considered by the Three Judge Bench of the Honble Supreme Court in Krishnan & Anr. Thus, prima facie, the element of deceiving the complainant exists from the case as set up by the complainant. 10. More so, the scope of Sub-section (3) of Section 397(3), CrPC and inherent powers of the High Court under Section 482, CrPC came to be considered by the Three Judge Bench of the Honble Supreme Court in Krishnan & Anr. vs. Krishnaveni & Anr., AIR 1997 SC 987 and the Honble Supreme Court held as under:- "Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397 (2) of the Code." 11. In this view of the matter, no case warranting interference under Section 482, CrPC is made out. The petition lacks merit and it is dismissed accordingly.