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2006 DIGILAW 918 (RAJ)

Bhagywati Devi v. Bhoj Raj

2006-03-22

H.R.PANWAR

body2006
JUDGMENT : 1. - By the instant criminal revision under Section 397/401 Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter), petitioners have challenged the order dated 18.3.2005 passed by the Additional Chief Judicial Magistrate, Sri Karanpur, district Sri Ganganagar (for "the Trial Court" hereinafter) in Regular Criminal Case No. 106 of 2005, whereby the Trial Court took cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act" hereinafter) on the complainant filed by the non-petitioners against the petitioners. 2. I have heard learned counsel for the parties. Perused the order impugned. 3. A complaint was filed by the non-petitioners against the petitioners before the Trial Court on 6.7.2000 under Section 138 of the Act alleging therein the cheque of Rs. 24,37,480/- issued by the petitioners in favour of the non-petitioners, on presentation to the banker, was dishonoured and returned unpaid by the bank because the amount in the bank account of the petitioners was insufficient to honour the cheque. In other words, the cheque was returned and dishonoured on account of insufficient fund in the bank account of the petitioner, to which the cheque was issued. A legal notice under Section 138 of the Act was served requiring the petitioners to pay the cheque-amount within fifteen days. The petitioners failed to pay the amount within the stipulated period mentioned in the notice and, therefore, within the stipulated time, a complaint was filed against the petitioners by the non- petitioners before the Trial Court for the offence under Section 138 of the Act. The Trial Court, vide impugned order took cognizance of the offence under Section 138 of the Act against the petitioners and issued process, which came to be challenged by the petitioners by the instant criminal revision. 4. It is contended by the learned counsel for the petitioners that the petitioners have also lodged a criminal report against the non-petitioners, being FIR No. 318 dated 27.6.2000, for the offences under Sections 379, 420, 467, 468, 471, 473, 193 and 120-B, Indian Penal Code regarding the theft and forgery of the cheque and, therefore, the cognizance taken against the petitioners may be quashed. 5. 5. Learned counsel for the non-petitioners submits that the cheque in question issued by the petitioners was sent to the bank for encashment, which was returned unpaid on 1.6.2000 on account of insufficient and thereafter a statutory notice of 15 days was served on the petitioners requiring them to pay the cheque amount. The notice dated 16.6.2000 was received by the petitioners on 17.6.2000 and thereafter the petitioners have lodged a false and frivolous criminal report against them on 27.6.2000, which is a designed counter to the complaint lodged by the non-petitioners against the petitioners. According to the learned counsel for the non-petitioners, the criminal report lodged by the petitioners culminated in negative final report by the police as the police did not find the case as alleged by the petitioners and that negative final report came to be accepted by the Trial Court. Learned counsel for the non-petitioners has relied on a decision of the Hon'ble Supreme Court in Sunil Kumar v. Escorts Yamaha Motors Ltd. & Ors., 1999 SCC (Criminal) 1466, wherein the Apex Court held that the allegation made in the FIR did not make out the offence of cheating or criminal breach of trust and on the other hand the attending circumstances indicate that the FIR was lodged to pre-empt the filing of the criminal complaint against the appellant therein by the complainant under Section 138 of the Act. After having the knowledge of filing a complaint against the appellant therein, the appellant lodged an FIR for the offences under Sections 420, 406 and 468 Indian Penal Code alleging therein that the complainant therein, by an act of conspiracy, committed criminal breach of trust by presenting for encashment of blank cheques signed by the appellant therein for a purpose other than that for which the cheque had been given to them and thereby causing to the appellant therein loss of a certain amount. That FIR came to be challenged by the complainant on the ground that the FIR has been instituted with an ulterior motive and thereby there has been gross abuse of the process of law and as such the FIR should be quashed. The matter was carried to the Hon'ble Supreme Court. The Apex Court, while, dismissing the appeal, held that the FIR was lodged to pre-empt the filing of the complainant under Section 138 of the Act. 6. In S.K. Gulati & Ors. The matter was carried to the Hon'ble Supreme Court. The Apex Court, while, dismissing the appeal, held that the FIR was lodged to pre-empt the filing of the complainant under Section 138 of the Act. 6. In S.K. Gulati & Ors. v. State of Rajasthan & Anr., 2004(3) R.Cr.D. 250 (Raj.), this Court, while exercising the power under Section 482 of the Code, quashed the proceedings initiated by the non-petitioners therein against the petitioners for the offences under Sections 379 and 380 Indian Penal Code on the ground that the complaint has been filed with an ulterior motive to pre-empt the filing of the criminal complaint against the non-petitioners therein under Sections 138 and 141 of the Act which is pending in the Court of the Metropolitan Magistrate at Dadar, Mumbai. 7. Be that as it may, the FIR lodged by the petitioners, bearing No. 318 dated 27.6.2000, is not the matter under consideration before this Court. Even according to the learned counsel for the petitioners, a negative final report was filed by the police in that FIR, which has been accepted by the Trial Court. 8. So far as order taking cognizance is concerned, there is sufficient material before the Trial Court, including the complaint, dishonour of cheque, notice served and non-payment of cheque amount by the petitioner and, therefore, in my view, the Trial Court was justified in taking cognizance of the offence under Section 138 of the Act and issuing process against the petitioners. The order impugned, taking cognizance and issuing process, passed by the Trial Court cannot be said to have resulted in injustice or abuse of process of the Court, warranting interference in revisional jurisdiction. 9. Consequently, I do not find any merit in the revision petition and it is dismissed accordingly. The stay petition also stands dismissed.Revision dismissed. *******