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2006 DIGILAW 1053 (RAJ)

Raghuveer Singh v. State of Rajasthan

2006-04-03

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-This criminal revision under Section 397 read with Section 401 Code of Criminal Procedure, 1973 (for short the Code hereinafter), is directed against order dated 30.07.2005 passed by the Additional Sessions Judge, Anoopgarh Distt. Sriganganagar (for short the revisional Court hereinafter) in Criminal Revision No. 48/2005 whereby the revision petition filed by Non-petitioner No. 2 against order dated 02.06.2005 passed by the Judicial Magistrate, Ghadsana (for short the trial Court hereinafter) taking cognizance of offences under Sections 403, 420, 467, 468, 471 and 408, IPC against the Non-petitioner No. 2 was allowed and the Non-petitioner No. 2 was discharged of the offences noted above. Aggrieved of the order impugned, the petitioner has filed the instant revision. 2. I have heard learned Counsel for the parties. Perused the order of revisional Court as well as of the trial Court. 3. Non-petitioner No. 2 filed a complaint under Section 138, Negotiable Instruments Act, 1881 (for short the Act) against the petitioner before the trial Court on 05.06.2003, inter alia, alleging therein that the complainant was known to the petitioner since the petitioner had a dealership of Mahendra Tractor in the name and style of M/s. Dhanju Tractors. He requested for some loan as he was finding himself short of funds to run the business. The complainant advanced an amount of Rs. 1.80 lac on 111.2001. As against the repayment of the said loan amount of Rs. 1.80 lac, the petitioner issued a cheque bearing No. 751539 dated 20.02.2003 in the sum of Rs. 1.80 lac. The said cheque was presented to the Ganganagar Regional Rural Bank, Branch Ghadsana on 07.03.2003, however, it was returned unpaid and was thus dishonoured for want of sufficient funds with the endorsement insufficient funds stand to the account of the petitioner. The said intimation was received on 17.04.2003. On receipt of intimation regarding the cheque having returned unpaid and dishonoured, a registered legal notice through Counsel requiring the petitioner to pay the cheque amount within fifteen days from the date of receipt of the notice was sent on 30.04.2003. The petitioner refused to accept the notice and thus, the same was returned undelivered with the endorsement refused on 07.05.2003. Within the statutory period of one month from the date of receipt of notice, a complaint under Section 138 of the Act was filed by the complainant before the trial Court on 05.06.2003. The petitioner refused to accept the notice and thus, the same was returned undelivered with the endorsement refused on 07.05.2003. Within the statutory period of one month from the date of receipt of notice, a complaint under Section 138 of the Act was filed by the complainant before the trial Court on 05.06.2003. Trial Court took cognizance of the offence under Section 138 of the Act and issued process against the petitioner. Petitioner appeared before the trial Court on 11.08.2004 and moved a bail application, which was allowed and he was released on bail. Thereafter, on 08.09.2004, the petitioner filed a complaint before the trial Court which was sent to the police for investigation under Section 156(3) of the Code alleging therein that in the year 1993, petitioner obtained dealership of Mahendra and Mahendra and started business in the name and style of M/s. Dhanju Tractors. He was the sole owner and proprietor of the said firm. It was alleged that in the said firm, the complainant was appointed as a salesman on fixed salary. It was further alleged that a blank cheque duly signed by the petitioner used to remain with the salesman by which the complainant had committed criminal breach of trust by committing theft and forging the same and misused the cheque. The police thoroughly investigated the matter and did not find the case and thus filed a negative final report before the trial Court. However, it stated that the offence under Section 403, IPC was prima facie made out, which being non-cognizable, no challan was filed. Trial Court by order dated 02.06.2005 took cognizance of the offence under Sections 403, 420, 467, 468, 471 and 408, IPC against the petitioner and issued process. That order came to be challenged by the Non-petitioner No. 2 before the revisional Court which came to be set aside by order impugned. Hence, this revision. 4. It is contended by the learned Counsel for the petitioner that the complainant was inducted as a partner of the firm M/s. Dhanju Tractors having 20% share in the partnership firm and at the time of entry into partnership, a sum of Rs. Hence, this revision. 4. It is contended by the learned Counsel for the petitioner that the complainant was inducted as a partner of the firm M/s. Dhanju Tractors having 20% share in the partnership firm and at the time of entry into partnership, a sum of Rs. 1.80 lac was invested by the non-petitioner complainant in the firm and that firm continued up to the year 2001 and thereafter, on account of withdrawal of the dealership, the firm came to be closed and, therefore, according to the learned Counsel for the petitioner, the non-petitioner complainant has taken benefit of the firm and, therefore, no amount was outstanding. Learned Counsel further submits that on closure of the firm, all remaining blank cheques in the name of the firm were deposited with the banker and all the cheques were utilised upto the year 1998 and, therefore, the cheque in question is a solitary cheque which is alleged to have been issued in the year 2003 from the cheque book which had been utilised in the year 1998. Learned Counsel for the complainant-non petitioner submit that the petitioner in the complaint dated 08.09.2004 very specifically averred that the petitioner was the sole owner and proprietor of the firm M/s. Dhanju Tractors and, therefore, this being the specific admission of the petitioner, now the petitioner cannot turn around and say that the complainant-non-petitioner was partner having share of 20%. They further submit that in the complaint dated 08.09.2004 complainant-non-petitioner has been shown as Salesman on fixed salary and, therefore, it cannot be said that the petitioner complainant was a partner having 20% share in the firm. Learned Counsel further submit that it has not been disputed by the petitioner that the cheque has been duly signed by the petitioner and issued in favour of the non-petitioner complainant. On being presented to the bank, it was dishonoured and returned unpaid on account of closure of account. Learned Counsel submits that the cheque issued in favour of the complainant-non-petitioner was dated 111.2001 though with future date and on being presented to bank on the due date, it was returned unpaid with the endorsement that account is closed. Learned Counsel submits that closure of the bank account by the petitioner would mean that the petitioner had no money in his account and, therefore, dishonour of the cheque is on account of insufficient amount to honour the cheque. Learned Counsel submits that closure of the bank account by the petitioner would mean that the petitioner had no money in his account and, therefore, dishonour of the cheque is on account of insufficient amount to honour the cheque. Learned Counsel has relied on decisions of the Honble Supreme Court in NEPC Micon Limited & Ors. vs. Magma Leasing Limited, 1999 CrLR 336 SC, Sunil Kumar vs. Escorts Yamaha Motors Ltd. & Ors., 1999 SCC (Cr.) 1466 and of this Court in S.K. Gulati & Ors. vs. State of Rajasthan & Anr., 2004 (3) RCrD 250 (Raj.). 5. In NEPC Micon Limited & Ors. vs. Magma Leasing Limited (Supra), the Apex Court while considering the endorsement account closed on the cheque returned unpaid, held that even though Section 138 of the Act is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. It has further been held that Section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. It was further held that when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because “the amount of money standing to the credit of that account is insufficient to honour the cheque” as envisaged in Section 138 of the Act. 6. In Sunil Kumar vs. Escorts Yamaha Motors Ltd. (Supra), the Apex Court while considering a case wherein FIR for the offences under Section 420/406/468, IPC was lodged on the allegations that the respondent therein by an act of conspiracy committed criminal breach of trust by presenting for encashment blank cheques signed by the appellant therein for the purpose other than for which the cheques had been given to them and thereby causing to the appellant loss of certain amount. The Apex Court held that apart from the fact that the said cheques did not make out the offence of cheating or criminal breach of trust, attendant circumstances indicated that FIR was lodged to preempt the filing of complaint under Section 138 of the Act against the appellant therein and in those circumstances, the Apex Court held that the quashing of the FIR was well within the jurisdiction of the High Court as the FIR amounted to abuse of the process of the Court. 7. This Court in S.K. Gulati & Ors. vs. State of Rajasthan & Anr. (Supra), relying on the decision of the Honble Supreme Court in Punjab National Bank vs. Surendra Prasad, 1993 (Supp) (1) SCC 499 and Sunil Kumar vs. Escorts Yamaha Motors Ltd. (Supra), held as under:- “The attendant circumstances in the instant case indicate that the second respondent has filed the instant complaint with an ulterior motive to pre-empt the filing of the criminal complaint against him under Sections 138 and 141 of the Negotiable Instruments Act which is pending in the Court of Metropolitan Magistrate at Dadar, Mumbai. Even taking the allegations made in the complaint on its face value it does not satisfy the essential ingredients of offence under Sections 379 and 420, IPC. In these fact and circumstances of the case to continue the criminal proceedings under the impugned order against the petitioner in the Court of Judicial Magistrate, Nathdwara tantamounts to an abuse of the process of the Court. Thus, it is considered fit case to interfere with the proceedings pending in the Court of Judicial Magistrate, First Class, Nathdwara to prevent the abuse of process of the Court by quashing the same.” 8. In the instant case, the petitioner complainant filed the complaint on 08.09.2004 for the offences under Sections 420, 467, 468, 471, 409 and 389, IPC before the trial Court. The said complaint was sent to police for investigation under Section 156 (3), CrPC, crime report came to be registered on the said complaint and after thorough investigation, police filed negative final report. On notice being served on the petitioner complainant, he filed a protest petition on which the trial Court took cognizance of the offences noticed above which came to be challenged by the non-petitioner by way of criminal revision. On notice being served on the petitioner complainant, he filed a protest petition on which the trial Court took cognizance of the offences noticed above which came to be challenged by the non-petitioner by way of criminal revision. The revisional Court held that before filing complaint by the petitioner on 08.09.2004, the cheque issued by the complainant in favour of the non-petitioner came to be dishonoured on account of closure of the account. Thereafter, statutory legal notice was served on the petitioner, dated 30.04.2003. The petitioner failed to make payment of the cheque amount within the statutory period. The complaint was filed by the non-petitioner under Section 138 of the Act and process was issued. The petitioner appeared before the trial Court in the case against him for offence under Section 138 of the Act on 11.08.2004 and thereafter, on 08.09.2004, he filed the complaint for the offences noticed above which amounts to pre-empting the complaint filed by the non-petitioner against the petitioner. 9. Keeping in view the decisions of the Honble Supreme Court in NEPC & Ors.(Supra), prima facie offence under Section 138 of the Act is made out against the petitioner. The complaint of the non-petitioner No. 2 Mukhtiar Singh for the offence under Section 138 of the Act is prior in time which clearly goes to show that the complaint filed by the petitioner against the non-petitioner is to pre-empt the filing of the complaint by the non-petitioner under Section 138 of the Act against the petitioner and, therefore, the revisional Court rightly set aside the order taking cognizance passed by the trial Court. In the circumstances, therefore, the order impugned does not suffer from any error, illegality or perversity warranting interference in the revisional jurisdiction. 10. In the result, I do not find any merit in the revision petition and accordingly, it is dismissed.