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2006 DIGILAW 482 (JHR)

Naren Kumar Modi v. State of Jharkhand

2006-04-27

D.K.SINHA

body2006
JUDGMENT : D.K. Sinha, J.-The petitioner Naren Kumar Modi & Ganesh Modi @ Soman Kumar Modi have preferred this petition for quashing of the entire criminal proceeding as well as the cognizance order impugned dated 10.1.2003 passed by the Court of C.J.M., Dumka in Dumka (Town) P.S. Case No. 194/2002 corresponding to G.R. No.1114/02. 2. On the receipt of the notice of the Court the O.P. No.2 appeared and filed counter-affidavit. Petitioners have also filed supplementary affidavit, which are on the record. 3. It has been alleged by the informant O.P. NO.2 that both the petitioners had been supplying coal, stone chips, bricks and sand etc. for the last three years by their truck No. BEH 8353 and in lieu of that the informant paid the freight of the truck to the tune of Rs. 1,53,714/- and by way of advance as loan to do their business, a sum of Rs. 2,40,000/-, total Rs. 3,93,714/ - in cash. Later on in the month of January, 2003 when the O.P. No.2, approached the petitioner No.2 herein to take 'back his money it is stated that the petitioner No.2 issued two cheques No. 0423268 and 0423269 for Rs. 1,00,000/- in the name of Central Bank Chapakandar Branch and further two cheques vide No. 715149 and 715147 of Rs. 1,00,000/- from the account No. CA2081 Maa Enterprises in the name of State Bank of India to him. When the cheques drawn on Chapakandar Branch of Central Bank of India presented for withdrawal it was stated that there was no money in the account of the petitioners whereas on presentation of the cheques in State Bank of India it was stated that there was no account of such number as mentioned in the cheque. When the O.P. No.2 enquired and asked the petitioners for the money, it, was refused by the petitioners. On the basis of the written report of informant O.P. No.2, Dumka (Town) P.S. Case No. 194/02 was registered for the offence under Section 406/419 as also under Section 420 of Indian Penal Code. 4. Learned Counsel for the petitioners submitted, that no documentary, evidence was produced on behalf of the O.P. No.2 in support of the allegation that the petitioners had actually taken loan of Rs. 4. Learned Counsel for the petitioners submitted, that no documentary, evidence was produced on behalf of the O.P. No.2 in support of the allegation that the petitioners had actually taken loan of Rs. 2,40,000/- from the O.P. No. 2 and therefore, they have not committed any offence as alleged rather they have been implicated due to their business rivalry. 5. Advancing his argument, learned Counsel submitted that to constitute an offence under Section 406 I.P.C. entrustment is essential factor and in the present case there is no entrustment of money rather it was admitted fact that the petitioners and the O.P. NO.2 were in friendly terms. For constituting an offence under Section 419 Indian Penal Code the essential ingredient is the cheating by personation but in the present case such ingredient is lacking. Similarly for constituting an offence under Section 420 I.P.C., there is no evidence in the present case which can prove that the intention of the petitioners was to deceive O.P. No. 2 from the very inception of 'the matter and therefore Section 420 I.P.C. is also not attracted. 6. The Counsel pointed out towards Annexure-2 of the petition which is the copy of the compromise petition duly signed by the petitioners and the informant O.P. No. 2 herein filed before the Court of C.J.M., Dumka on 5.,12.2002 wherein it was agreed by the petitioners that the offences as attracted in the case under Sections 420, 419, 406 of the Indian Penal Code can be compounded with the permission of the court with the consent of the persons who had alleged to have been cheated or• whose money is involved. It was further contended in the compromise petition that the parties were businessmen and upon restoration of good feelings the parties did not want to proceed with the case on the terms that the petitioners accused have already paid a sum of Rs. 1,00,000/- to the O.P. No. 2/informant and further agreed to pay the balance in equal installments of Rs. 40,0001- each on 5th of the every succeeding months till completion of dues and that they would be legally liable to make such payment in the present case. 1,00,000/- to the O.P. No. 2/informant and further agreed to pay the balance in equal installments of Rs. 40,0001- each on 5th of the every succeeding months till completion of dues and that they would be legally liable to make such payment in the present case. It is further submitted that no criminal intent of the petitioners has been disclosed to attract a criminal prosecution and as a matter of fact the present case patently appears to be a case of civil nature and for that civil remedy lies. 7. Learned Counsel for the petitioners submitted and supported the contention as contained in paragraph NO.5 of the supplementary affidavit that the O.P. No. 2/informant had admitted in his written report that the cheques in question were issued by Ganesh Modi @ Soman Kumar Modi (Petitioner No.2) but the cognizance of the offence was also taken against the petitioner No.1 Naren Kumar Modi also which is illegal. As a matter of fact the cheques in question were never produced or presented before the bank concerned so as to' obtain endorsement of bankers of alleged bouncing (dishonoured). The allegation of cheating as well as criminal breach of trust is premature, imaginary and pre-supposed to have taken place. The present case is the outcome of vengeance since the petitioner NO.2 Ganesh Modi @ Soman Kumar Modi had filed a Complaint Case vide P.C.R. 442/02 against the informant/O.P. No. 2 Om Prakash Modi and Rajesh Kejriwal in which cognizance of the offence was taken under Section 323/379 I.P.C. against both the accused on 29.10.2002 and in retaliation the present police case was filed by the O.P. NO.2 who was an accused in that case implicating both the brothers/petitioners. In view of the compromise petition filed on behalf of the parties in the present case before the court below and on pursuance of the O.P. NO.2 herein not to take steps against him in a complaint case of theft, the said case was allowed to be withdrawn due to non-prosecution and on the same ground the petitioner NO.1 herein Naren Modi was admitted to bail by the Court of C.J.M., Dumka in the present case. 8. 8. In the counter-affidavit filed on behalf of the O.P. NO.2 herein the prosecution case has been supported but at the same time it is stated that the petitioners have not come before this Court with clean hands with reference to paragraph No. 12 of the petition in which it was stated that though the petitioners were ready to make payment of the balance amount and signed the joint compromise petition but on the other hand without making payment they moved before this Court for the quashing or entire criminal prosecution and that petitioners have not made payment of the balance amount. 9. Having regard to the facts and circumstances of the case and without examining the merit of the petition under Section 482 Cr.P.C., the Court finds that a compromise petition is pending before the court below duly signed by both the parties on specific terms and condition and undertakings of the petitioners to pay the balance amount in equal installments to the tune of Rs. 40,000/- per month by 5th of the succeeding month and such fact has been admitted by the O.P. No.2 in the counter-affidavit as referred hereinabove. Since good sense has prevailed between the parties, it is expedient that the order may be passed on the said compromise petition by the court below, as a separate petition has also been filed in the said court seeking permission of the Court to allow the said compromise petition. 10. This petition is dismissed as disposed of with the above observation.