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2007 DIGILAW 1115 (PAT)

Bal Krishna Pachisia v. State Of Bihar

2007-07-11

MADHAVENDRA SARAN

body2007
Judgment 1. This application under Sec. 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 17.1.2004 passed by Shri D.M. Tripathi, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 2394(C)/03 whereby and whereunder he has taken cognizance under Sections 406 and 420 of the Indian Penal Code against the petitioners. 2. It appears that opposite party no. 2/ complainant filed Complaint Case No. 2394(C)/03 in the Court of Chief Judicial Magistrate, Patna alleging inter alia that the complainant is the proprietor of a firm named M/s Mudran House situated at Railway Hunder Road, Lohanipur, Patna and is engaged in printing works of stationery items. The complainant had received order of printing of books from Bihar Text Book Publishing Corporation, Patna in the year 1999. The complainant approached the petitioners for the said purpose and executed an agreement for supply of papers. The complainant placed a purchase order with the accused persons/petitioners for supply of papers and handed over to the petitioners two cheques, out of which one being serial no. 2930370 drawn on Bank of India, Rajendra Nagar, Patna for a sum of Rs. 30,000/- paid as advance to the petitioners and other being serial no. 2930371 having only signature of the drawer was deposited as security. In pursuant to the purchase order the petitioners supplied to the complainant a total of 71.94 Metric tonne of Cream Von Paper and 6.1 Metric tonne of cover paper for a total value of Rs. 20,69,813/- in between 9.4.1999 and 28.9.1999. As per agreement a sum of Rs. 1,04,000/- as cost of the carrier of the goods was paid by the complainant which was subject to reimbursement by the petitioners through adjustment of same in the bills. Against the aforesaid supply of papers the complainant had already paid a sum of Rs. 19, 80,000/-vide different cheques. It is alleged that since 17.6.1999 to 7.10.1999 the complainant had returned back vide different consignments about 23408 Kg. of papers for a gross value of Rs. 6,10,250/-for being of inferior quality. It is further alleged that due to delayed and negligent, supply of papers by the petitioners the complainant failed to satisfy the order placed by the Corporation in time due to which a sum of Rs. of papers for a gross value of Rs. 6,10,250/-for being of inferior quality. It is further alleged that due to delayed and negligent, supply of papers by the petitioners the complainant failed to satisfy the order placed by the Corporation in time due to which a sum of Rs. 1,31,028/- was deducted by the Corporation from the payments made to the complainant for which petitioners were responsible. It is further alleged that petitioners had encashed a cheque bearing no. 2930.....1 for a sum of Rs. 8,50,000/- bearing only the signature of the complainant which is one of the seven cheques issued to the petitioners as security. In this manner a sum of Rs. 19,80,000/- was illegally drawn by the petitioners instead of genuine amount of Rs. 12,45,571/- only. It is also alleged that in spite of several request the petitioners never finalised the accounts of the complainant and also withheld the security cheques issued by the complainant. The complainant sufferer from brain haemorrhage and paralysis and remained in the treatment of doctor since 12.8.2001 to 25.8.2003 and after having recovered he once again requested the petitioners on 30.10.2003 to settle the accounts but was denied of any such relief Thus it is said that the petitioners have committed an offence of cheating and criminal breach of trust by wrongfully mis-appropriating a sum of Rs. 7,34,429 of the complainant. 3. It appears that the complainant was examined on solemn affirmation and during inquiry under Sec. 202 of the Code three witnesses were examined and the learned Magistrate vide order dated 17.1.2004 took cognizance and issued summons against the petitioners. Against the said order of cognizance dated 17.1.2004 the petitioners have preferred the present application for quashing before this Court. 4. It is was submitted on behalf of the petitioners that even if the allegation made in the complaint petition is accepted on its face value, no offence is made out. It was further submitted that the present Complaint Case No. 2394(C)/03 filed by opposite party/complainant against the petitioners is a counter blast of Complaint Case No. 1130(C)/2000 filed by petitioner no. 1 against complainant/opposite party no. 2 on 18.7.2000 in the Court of Chief Judicial Magistrate, Patna for offence under Sections 420, 406, 409 and 120B of the Penal Code and 138 of Negotiable Instrument Act in which cognizance has already been taken. 1 against complainant/opposite party no. 2 on 18.7.2000 in the Court of Chief Judicial Magistrate, Patna for offence under Sections 420, 406, 409 and 120B of the Penal Code and 138 of Negotiable Instrument Act in which cognizance has already been taken. It was pointed out that the present Complaint Case No. 2394(C)/2003 has been filed after three years of the date of alleged occurrence dated 28.2.1999. It was further submitted that in the counter case the allegation is that the petitioners supplied the papers as demanded by the present complainant who informed that they were not in a position to make immediate payment and so they handed over post dated cheques with promise that as soon as the supply was over the cheques may be encashed on the date of its maturity. The petitioners on the date of maturity of cheques drawn on Bank of India bearing no. 2930376 dated 27.5.2000 for Rs. 6,40,352/- presented the said cheque with his banker, Bank of India, Rajendra Nagar and the same was returned dishonoured with a note insufficient fund by the banker of the present complaint on 2.6.2000. The petitioners within a period of 15 days sent a notice under registered post on 6.6.2000 to the complainants firm demanding payment of the dishonoured cheque and when no payment was made they filed Complaint Case No. 1130C/2000 in the Court of Chief Judicial Magistrate. Learned counsel thus submitted that the present case was filed by the complainant to pre-empt the filing of the complaint case under Sec. 138 of the Negotiable Instrument Act and other sections of the Penal Code against the complainant/opposite party no. 2. In support of his contention that the continuance of the present case is an abuse of the process of the Court, the learned counsel placed reliance on a decision given in the case of Sunil Kumar V/s. Escorts Yamaha Motors Ltd. & Ors., 1999 8 SCC 468 . 5. Learned counsel for opposite party no. 2 on the other hand supported the impugned order and submitted that as per agreement the complainant gave seven blank cheques as security for future due payment and the petitioners with a view to cheat the opposite party no. 2 presented the aforesaid cheque after writing amount and date on the same for encashment even after knowing the facts that he has already received much more amount from opposite party no. 2 presented the aforesaid cheque after writing amount and date on the same for encashment even after knowing the facts that he has already received much more amount from opposite party no. 2. 6. Thus the position is that the present Complaint Case No. 2394(C)/03 was filed in the Court of Chief Judicial Magistrate, Patna on 4.11.2003. It appears that in the year 2000 the petitioners had filed Complaint Case No. 1130C/2000 against opposite party no. 2 in the Court of Chief Judicial Magistrate, Patna for offence under Sections 420, 406, 409 and 120B of the Penal Code and Sec. 138 of the Negotiable Instrument Act in which cognizance was taken. In that case on the date of maturity cheque bearing no. 2930376 dated 27.5.2000 for Rs. 6,40,352/ - was presented with its banker for payment but the same was returned dishonoured with a note insufficient fund by the banker of the present complainant on 2.6.2000. The petitioners thereafter gave notice within 15 days under registered post to the complainants firm demanding payment of the dishonoured cheque and when no payment was made then the case was filed in the Court of Chief Judicial Magistrate. There is nothing in the agreement, copy of which has been annexed to the counter affidavit to show that the complainant gave seven blank cheques bearing only signature to the petitioners as security for future due payment. If an amount is proved to have had a reasonable claim against another for more than the sum of money belonging to the other in his hand, his retention of it, and even is user of it for his own purposes would not in law amount to criminal breach of trust because the intention could not have been dishonest, that is to say, to cause wrongful loss or wrongful gain. The decision relied upon by the petitioners counsel supports his case. It appears that the case in hand has been filed with a motive for wreaking vengeance and to pre-empt the filing of criminal case against the complainant under Sec. 138 of the Negotiable Instrument Act. Issuance of process should not be allowed to be an instrument of operation or needless harassment. 7. In the aforesaid facts and circumstances, this application is allowed and the order of cognizance dated 17.1.2004 is hereby quashed.