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2005 DIGILAW 581 (PAT)

Sanjay Suchanti v. State of Bihar

2005-07-05

body2005
ORDER The petitioners have filed the petition under Section 482 of the Code of Criminal Procedure (in short, 'the Code') with a prayer to quash the order dated 23rd April, 2003/24th April 2003 passed by the Judicial Magistrate, Patna in Complaint Case No. 34(c) of 2003 whereby cognizance of offence under Section 420 IPC and 138 of the N.I. Act has been taken against the petitioners. 2. The complainant B. K. Sinha, one of the partners of M/s Veena Theatre, Station Road, Patna who is an exhibitor of Motion Pictures filed complaint Case No. 34(c) of 2003 alleging therein that M/s Anjana Movies (P) Ltd. is a company engaged in business of distribution of films and the accused petitioners Sanjay Suchanti and Sushil Kumar Jain were the Directors of the said Company and were responsible for the conduct of the business of the Company. In the 1st week of March 2000, the two petitioners approached the complainant and persuaded him to book films for exclusive release in the cinema hall of Veena Theatre on usual terms and conditions. The two petitioners represented before the complainant that M/s Anjana Movies (P) Ltd. had acquired the distribution, exhibition and exploitation right of those films for the circuit of Bihar and Nepal from their respective producers and the aforesaid pictures were being registered in Bihar Motion Picture Association also. 3. The picture in which the offers were made by the petitioner were Majboor, Mawali, Rasta, Bawandar etc. The complainant being convinced with the genuineness of the offer because of the past business relation, agreed to accept the same and paid a total sum of Rs. 7,41,000/- to the accused as advance against the future supply of those films for exhibition in the Hall of Veena Theatre. 4. On receipt of the aforesaid amount, petitioner Sanjay Suchanti granted receipts in respect of acknowledgement of the amounts for each of seven films as mentioned above on behalf of the Company. 5. Contrary to, the promise and pretentions of the accused, the aforesaid films for which advance was paid could never be made available and the complainant in spite of several reminders and personal follow up in the matter. 6. 5. Contrary to, the promise and pretentions of the accused, the aforesaid films for which advance was paid could never be made available and the complainant in spite of several reminders and personal follow up in the matter. 6. After frantic pursuit, petitioner Sanjay Suchanti through his covering letter dated 15th March 2002 informed the complainant that M/s Anjana Movies (P) Ltd. have decided not to release the pictures in question due to certain reasons and, therefore, they have to refund the advance amount of Rs. 7,41,000/- as per the details given therein. Along with the letter seven numbers of post dates cheques drawn under the signature of accused petitioner Sanjay Such anti were personally given by him to the complainant. The details of cheques are as follows. Sl.No. Cheque No. Date Amount (in Rs.) 1. 131814 1.10.2002 1,41,000/- 2. 131804 7.10.2002 1,00,000/- 3. 131808 14.1.2002 1,00,000/- 4. 131809 21.10.2002 1,00,000/- 5. 131810 7.11.2002 1,00,000/- 6. 131811 7.11.2002 1,00,0001- 7. 131813 11.11.2002 1,00,000/- 7. The complainant further mentioned in the complaint petition that on mutual understanding, the cheques were post dated which were to mature on different dates in the month of October - November, 2002. After these long dates of maturity for their presentations were given due to the reasons that there was already an award declared by BMPA against M/s Ajanta Movies (P) Ltd. of Rs, 4,00,000/- in another matter and, therefore, the accused was requested to discharge the liability arising out of the award by BMPA on priority basis and, therefore, he had pleaded or sufficient long time to arrange the money to honour the commitment. 8. The aforesaid seven cheques on attaining the maturity were deposited in the Bank for credit to the account of M/s Veena Theatre but the same were returned back through letter dated 13th November, 2002 of Andhra Bank on the ground that the Accounts of the accused - petitioner had already been closed as early as on 6th September, 2001. 9. Petitioners - accused had never disclosed the fact that M/s Anjana Movies (P) Ltd. was going to close the account in the Bank. 10. The willful suppression of the aforesaid fact indicates the fraudulent and dishonest intention on the part of accused petitioners while issuing the cheques and thereby assured the payment of the said amount. 11. 9. Petitioners - accused had never disclosed the fact that M/s Anjana Movies (P) Ltd. was going to close the account in the Bank. 10. The willful suppression of the aforesaid fact indicates the fraudulent and dishonest intention on the part of accused petitioners while issuing the cheques and thereby assured the payment of the said amount. 11. On locating the possible whereabouts of the petitioners - accused, the complainant sent notice under registered cover and they were apprised of the fact of dishonour of the cheques and were asked to make payment within 15 days from the date of receipt of the same. In response to the notice, the company of the petitioners sent a reply through their lawyer whereby the accused - petitioners instead of acknowledging the financial liability not only refuted the dues but also criminally intimated the complainant if he at all proceeded to release his dues in accordance with law. The complainant alleged in the complaint petition that the intention of the accused petitioners was malafide from the very beginning and their initial approach to the complainant in giving the offer of booking of films under reference was prompted with dishonest intention to cheat the complainant by giving false enducement and thereby to deprive the complainant of huge amount in the name of advance which offer they did not intend to fulfil and knew to be false. 12. On filing of the complaint petition, the complainant was .examined on S.A. and the enquiry under Section 202 of the Code was also conducted. Two witnesses, namely, Bidyanand Jha and Kedar Nath Mishra who are the employees of Veena Theatre were examined as witnesses during the enquiry. The copy of their statements are annexed as Annexures - 3 and 3/a to this petition. Perusal of their, statements shows that they have supported the allegations as in the complaint petition. 13. During hearing, learned counsel for the petitioners argued that in this case, there is no allegation that the petitioners had issued the cheques with intention to cheat the complainant, hence an offence under Section 420 I.P.C. is not made out. Perusal of their, statements shows that they have supported the allegations as in the complaint petition. 13. During hearing, learned counsel for the petitioners argued that in this case, there is no allegation that the petitioners had issued the cheques with intention to cheat the complainant, hence an offence under Section 420 I.P.C. is not made out. Learned counsel for the O.P. replied that the complainant has specifically alleged in the complaint petition that the intention of the petitioner - accused was malafide from the very beginning and their initial approach to the complainant in giving the offer of booking of films under reference was promoted with dishonest intention to cheat the complainant by giving false endorsement and thereby to deprive the complainant of the huge amount in the name of advance which offer they did not intend to fulfil and knew to be false. The learned counsel also submitted that seven cheques were post dated cheques, as detailed in the complaint petition and they were issued under the signature of the petitioner Sanjay Suchanti and that when the cheques were presented for payment on the date of maturity, the Bank returned the cheques with report that the petitioners had already closed their account prior to the date of maturity. The learned counsel further submitted that the petitioners never intimated the complainant about their any act or intention of closing their account in the Bank before the date of maturity of the post dated cheques issued by them. Hence, it was argued that it indicates an element of fraud in the petitioners - accused while issuing post dated cheques to the complainant with an intention that the cheques could not be encashed and the amount would be misappropriated by the accused petitioners. Therefore, the learned counsel for the O.P. argued that the element of fraud and cheating as alleged is also indicated from the conduct of the accused petitioners. Therefore, the learned counsel for the O.P. argued that the element of fraud and cheating as alleged is also indicated from the conduct of the accused petitioners. The submission of the learned counsel appears to carry substancial reasons and in the circumstances of the case, I find there is allegation and also prima facie material to indicate an offence under Section 420 of the I.P.C. Besides this, the seven cheques issued by the petitioners accused Sanjay Suchati, one of the Directors of M/s Anjana Movies (P) Ltd. could not be encashed due to Banker's refusal and report that the petitioners had already closed their account in the Bank prior to the date of maturity of cheques and thus showing lack or sufficiency of funds in the Bank for the payment of cheques, as issued by the petitioners - accused. The complainant also issued notice to the petitioners for making payment of cheques. According to the complainant, the notices were replied and issued of cheques were not denied but the complainant says that the liability of payment was denied on several frivolous grounds. Since the cheques were issued by the petitioners and they were dishonoured by the Bank due to their being no money in their name as the petitioners had closed their account and the amount was also not paid after service of notice to the petitioners, an offence under Section 138 of the N.I. Act is also made out. 14. Learned counsel for the petitioners cited the case of Dr. Sharda Prasad Sinha Vs. State of Bihar reported in AIR 1977 SC 1734. In the case under the authority, the allegations in the complaint or the charge - sheet did not constitute any offence under Section 34(1) (a) of the Bihar and Orissa Excise Act 1915, hence the order of taking cognizance was quashed. But in the instant case there is categorical allegation on the petitioners that they has offered for the supply of films and took advance and that their intention was to cheat the complainant from the very beginning and also that the petitioners - accused did not intimate the complainant about the closing of their account in the Bank before the maturity date of the post dated cheques issued by them which -indicated an intention of fraud in them. The ratio as laid down in the above cited authority of the Hon'ble apex Court does not help the petitioner. 15. Learned counsel for the petitioners further cited the case of State of Haryana Vs. Bhajan Lal reported in AIR 1992 SC 604 . In para - 108 of the judgment of the cited authority, seven circumstances have been discussed in detail under which a complaint or F.I.R. cannot be allowed to proceed and the proceeding under it has to be quashed. On considering the seven circumstances, as discussed in the cited judgment, the instant case does not appear to be covered by any of the seven circumstances. Hence this cited case is also of no help to the petitioners. 16. The case of Hriday Ranjan Prasad Verma Vs. State of Bihar reported in (2000)2 BLJR 1623 was also cited. It was a case in which the complaint had been filed against the vendor of land. The Hon'ble Supreme Court held that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention was shown at the beginning of the transaction and that mere failure to keep up the promise subsequently will not make out the offence of cheating. But in the present case before me, the complainant has alleged that the petitioners - accused had intention to cheat from the very beginning where they offered for the supply of films and obtained advance and also that the petitioners - accused did not inform the complaint about closing of their account prior to the date of maturity of the post dated cheques which indicated an intention of fraud in them and, therefore, this cited case is also of no help to the petitioners. 17. Learned counsel for the petitioner argued that in this case, there is no mensrea shown in the petitioners - accused for the purpose of cheating. 17. Learned counsel for the petitioner argued that in this case, there is no mensrea shown in the petitioners - accused for the purpose of cheating. The learned counsel for the C.P. replied that the complainant has categorically alleged in the complaint petition that the petitioners - accused had intention to cheat the complainant from the very beginning when they offered to supply the films and obtained advance for the same and also that the petitioners - accused did not intimate the complaint about their act of closing their account in the Bank prior to the date of maturity of the post dated cheques issued by them which indicates an element of fraud in them while issuing the cheques. Thus, hearing I find that in the instant case, there is allegation of intention to cheat hence, at this stage it cannot be ruled out that there was motive or meansrea from commission of the offence, as alleged. 18. Learned counsel for the petitioners cited the case of Smt. Katta Sujatha Vs. Fertilizer and Chemical Travan Core Ltd. report in (2002) 7 SCC 655 . It was a case under Sections 138 and 141 of the N.I. Act. In the complaint, under Section 138 of the N.I. Act against the Firm and its partners, including a partner to whom no particular act was specifically attributed and no allegation was against the said partner that she was incharge of and was responsible for the conduct of the business of the Firm and there was no allegation that the offence was commited with her consent or connivance or that the same was attributable to any neglect on her part in the matter of issuing of cheques. Hence, under these circumstances, the apex Court held that no case was made out against the said partner. Citing this judgment of the Hon'ble apex court, learned counsel for the petitioners argued that in the present case, the cheque was issued by one of the petitioners, namely, Sanjay Suchanti and that the other petitioner, namely, Sushil Kumar Jain had not issued the cheque and that there is no allegation against him with respect to issuance of and disnonour of the cheque Hence, the learned counsel argued that no case under Section 138 of the N.I. Act is made out against Sushil Kumar Jain. Learned counsel for the O.P. replied that there is allegation in the complaint petition that both the petitioners had approached the complainant and they had offered for the supply of the films and had obtained the advance money and that they had intention to cheat the complainant from the very beginning.He also argued that both the petitioners were the Directors of the Company M/s Anjana Movies (P) Ltd. on whose behalf they had taken money and offered to supply the films and that both the petitioners were in - charge of the petitioners Company and they had also come to tile complainant to offer him for the supply of films and obtained the advance money. So far the case under Section 138 of the N.I. Act is concerned, no doubt, one of the petitioners, namely, Sanjay Suchanti is said to have issued the cheques but since both the petitioners are said to be engaged in the running of the business of the firm Anjana Movies (P) Ltd. on whose behalf offers were made, advance money was taken and the cheques were issued, I find that in these, circumstances, it cannot be held at this stage that any offence against other petitioner, namely, Sushil Kumar Jain is not made out. 19. Petitioners' counsel cited the case of Monaben Ketanbhai Shah Vs. State of Gujrat reported in (2004) 3 BLJR 1763. It was a case under Sections 138 and 141 of the N.I,. Act, 1981. There has been dishonour of cheque due to the accused's direction to stop the payment. The complaint had been filed against five accused. The complaint did not show that all the accused were in charge of the business and the allegations in the complaint did not make out an offence against them. Hence, under these circumstances, the apex Court held that the discharging of the accused by the Magistrate was not unjustified. The complaint had been filed against five accused. The complaint did not show that all the accused were in charge of the business and the allegations in the complaint did not make out an offence against them. Hence, under these circumstances, the apex Court held that the discharging of the accused by the Magistrate was not unjustified. But the ratio as laid down in this cited case does not help the petitioners due to the reason that in the present case, there is allegation that both the petitioners were engaged in the business of the Company M/s Anjana Movies (P) Ltd. and both had approached the complainant and had obtained advance money from the complainant and that the petitioner Sanjay Such anti had issued the post dated cheque which was dishonoured and that despite service of notice to the petitioners, the payment was not made to the complainant. 20. Learned counsel for the C.P. cited the case of Dalmia Cement Ltd. Vs. Galexy Traders and Agencies Ltd. reported in (2001) 6 SCC 463 . The apex Court had held in this judgment that Section 138 of the N.I. Act makes a civil transaction to be an offence by fiction of law. The learned counsel for the O.P. argued that though the transaction under Section 138 of the N.I. Act is a transaction of civil nature but it also makes out a criminal offence and that the petitioner accused are liable for such offence in the facts and circumstances of the present case. 21. Thus, hearing both sides and considering the discussions as made in the preceding paragraphs, I find that the order of the learned Magistrate taking cognizance of the offences is justified. There is no scope to make any interference with the impugned order taking cognizance of the offence. Hence, the order is upheld and the prayer of the petitioner is hereby rejected. In the result, this petition is dismissed.