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2006 DIGILAW 720 (JHR)

Gullu Mirchandani v. State Of Jharkhand

2006-06-19

RAKESH RANJAN PRASAD

body2006
JUDGMENT R.R. Prasad, J. 1. Heard learned Counsel appearing for the petitioners, learned Counsel appearing for the State and learned Counsel appearing for the opposite party No. 2. 2. This application has been filed under Section 482 Cr.P.C. for quashing the entire criminal proceeding of Jugsalai P.S. Case No. 184 of 2003 (G.R. No. 1779 of 2003) pending in the Court of Chief Judidciat Magistrate, Jamshedpur, East Singhbhum, lodged against the petitioners under Sections 467/468/471/420/406 of the Indian Penal Code. 3. The facts of the case giving rise to this application are that the complainant/opposite party No. 2 lodged a complaint case before the Chief Judicial Magistrate, Jamshedpur, which was sent to concerned police station under Section 156(3) Cr.P.C. for institution and investigation. Upon which the case was instituted, it has been stated by the complainant/informant that Mire. Electronic Company, who was arrayed as accused No. 1, is the Company incorporated under the Companies Act and is engaged in manufacturing of Colour and Black & White Television Sets under the brand name of ONIDA and has been selling in various parts of the country, including the township of Jamshedpur and that petitioner No. 1 being the Director of the said Company, is responsible for the state of affairs of the business of the said Company whereas petitioner No. 2 posted as Area Sales Manager under the aforesaid Company, is looking after the business of the said Company both at Patna as well as Jamshedpur and that the complainant has been running the business of selling the Television Sets and other electronic items under the name and style of M/s. Universal Hi-tech Ltd. and happens to be the proprietor of the said Firm. 4. It has been alleged, that M/s. Mire Electronic through its representative induced the complainant to take the distributorship of ONIDA Television, In order to take distributorship formalities were completed by filling up the form and depositing a sum of Rs. 5,000/ by way of account payee cheque with one Akash Kumar (not the petitioner) the then Marketing Executive of Mire Electronic. That apart two blank cheques bearing Nos. 0115674 and 0115675 drawn on Bank of India in favour of M/s. Mire Electronic was handed over to said Akosh Kumar and that was by way of security deposit, but subsequently to his utter surprise he did find that after putting figure of Rs. That apart two blank cheques bearing Nos. 0115674 and 0115675 drawn on Bank of India in favour of M/s. Mire Electronic was handed over to said Akosh Kumar and that was by way of security deposit, but subsequently to his utter surprise he did find that after putting figure of Rs. 3,50,314.00/- in one of the blank cheques it has been tendered before its hanker for encashment. Having came to know he instructed the Branch Manager to stop the payment as that was not against any debt payable to said M/s. Mirc Electronic. Accordingly, the cheque got dishonoured. Thereafter he received a notice from the Company that cheque issued for a sum of Rs. 3,50,314.00/- given in lieu of outstanding dues got dishonoured and put forth demand for payment of the said amount. Upon it he immediately sent a notice whereby he denied his liability to pay him Rs. 3,50,314,00/- as he had never received the Television Sets from M/s. Mire Electronic. Thus it has been alleged that the accused person fraudulently by putting arbitrary figure, has committed forgery in collusion with each other. 5. Learned Counsel appearing for the petitioners submits that petitioner No. 1 is the Managing Director of M/s. Mire Electronic whereas petitioner No. 2 is posted as Area Sales Managere at Patna and that the complainant was appointed as dealer tor sales ot Television Sets in the year 2000 and thereafter Television Sets and Washing Machines were delivered to the informant under invoices-cum- delivery challans several times and during, those business transactions when the informant incurred liability to make payment ol Rs. 1,50,314.00/- he issued a cheque of that amount vide Cheque No. 0115674 dated 10.4.2003, which on its deposit at S.B.I. Wada Branch got dishonoured for the reason that the payment has stopped by the Drawer. On getting intimation from the Bank on 30.4.2003 the petitioners Company sent a notice on 17.5.2003 under registered cover intimating about the aforesaid fact and put forth a demand, failing which it was specifically stated that the petitioners will file a case under Section 138 of the Negotiable Instrument Act, which was subsequently lodged. When the informant came to know about it he malafidely lodged this case as a counter blast to that case to save his skin and therefore the prosecution being malafide is liable to be quashed. When the informant came to know about it he malafidely lodged this case as a counter blast to that case to save his skin and therefore the prosecution being malafide is liable to be quashed. Learned Counsel further submits that according to the case as has been given in complaint/F.I.R. it was one Akash Kumar the then Executive Manager to whom the informant approached for taking dealership and did all the formalities and also gave Cheque to him of Rs. 5,000/- as security deposit and also the said blank Cheque, which has been alleged to have been filled up, later on, and thus it is evidently clear that neither these petitioners have been alleged to have approached the informant nor the informant did deliver the incriminating Cheque and on this ground alone it can be said that the petitioners did not commit any offence and therefore entue prosecution lodged against the petitioners is fit to be quashed 6. As against this, learned Counsel appearing for the opposite party No. 2. submits that it is true that in the F.I.R. it has been stated that one Akash Kumar was given blank Cheque but during investigation the Investigating Officer did find that the petitioner No. 2 happens to be Area Sales Manager at both places at Patna and Jharkhand and therefore the blank Cheque given in the name of Company to which petitioner No.1 is the Managing Director cannot escape his liability from the offepces alleged and that during investigation it has also come that not a single farthing was due to the accused person and therefore me accused did commit forgery by putting arbitrary figure over the blank Cheque and that all these aspect of the matter are to be thrashed during trial and hence under the aforesaid facts and circumstances the proceeding is not at all fit to be quashed. 7. Having heard counsel for the parties and on perusal of the record, it is evidently clear that there had been business transactions in between the petitioners Company and the informant right from the year 2000 until dispute arose and that before lodging this F.I.R. the informant did receive a notice given by the petitioners Company that the Cheque issued for worth Rs. 3,50.314/- got dishonoured and the demand was put forth for making payment of the said amount and then the instant case was lodged with the allegation that on inducement when he agreed to take dealership of the Company he was made to deposit a sum of Rs. 5,000/- vide Cheque No. 0115673 dated, 20.3.2000 as security deposit. It is significant to note that date of the Cheque bears the date as 10.4.2003, whereas the Cheque of Rs. 5000 allegedly given on the same day bears the date as 20.3.2000, though it is not the case that the blank Cheque was post dated. 8. Taking into consideration this, aspect of the matter and the case of the petitioners one would find that the complainant/informant got the case instituted with an ulterior motive for wreaking vengeance. Here it would be pertinent to refer lo a case of Punjab National Bank and Ors. v. Surendra Pd. Sinha 1993 Supp. (1) SCC 499 where it has been held: the judicial process should not be an instrument of oppression or needless harassment. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only or satisfying that the laws casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. 9. That apart there has been no allegation against these petitioners that the petitioners did approach the informant and induced him to take dealership and with an intention to cheat the petitioners made the informant to hand over the Cheque. On the other hand, prima facie, it appears that when the case was filed under Section 138 of the Negotiable Instrument Act the informant in order to save his skin from the criminal liability got the case lodged by twisting the facts. 10. Learned Counsel fur the opposite party No. 2 submits that this complaint was lodged by the complainant/informant when he had had no knowledge that the case has been filed under Section 138 of the Negotiable Instrument Act. 10. Learned Counsel fur the opposite party No. 2 submits that this complaint was lodged by the complainant/informant when he had had no knowledge that the case has been filed under Section 138 of the Negotiable Instrument Act. Even if, it is accepted that the informant had no knowledge of lodging the case under Section 138 of the Negotiable Instrument Act, but the complainant in his complaint/F.I.R. has admitted that a notice was received, whereby it was intimated that the Cheque given of Rs. 3,50,314.00/- got dishonoured and the informant was called upon to make payment of that. The case lodged by the informant smacks malafide. Thus the instant case fits in the category No. 7 of broad categories indicated in the State of Harayana v. Bhajanlal Case 1992 SUUP SCC 335, as the prosecution seems to have been lodged by the informant with an ulterior motive to wreak vengeance and in that event. It is allowed to be continued it would result to manifest injustice. 11. In that view of the matter, the entire proceeding of Jugsalai P.S, Case No. 184 of 2003 G.R. No, 1779 of 2003 pending in the court of Chief judicial Magistrate, Jamshedpur East Singhbhum, is hereby quashed. Consequently, this application is allowed.