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2007 DIGILAW 232 (PAT)

Mahesh Prasad v. State Of Bihar

2007-02-02

CHANDRA MOHAN PRASAD

body2007
Judgment 1. All the three petitions arise out of the common order dated 15th January 2003 of the learned Judicial Magistrate, 1st Class, Hajipur passed in Complaint Case No. 2815 of 2002 whereby cognizance of the offences under Sections 420 and 406 of the Indian Penal Code has been taken against the petitioners who are Officials of the Bihar State Credit and investment Corporation Ltd. (hereinafter, in short, referred to as "BICICO"). 2. The O.R No. 2 Brajeshwar Prasad, one of the directors of Sunil Polyplast Ltd., Hajipur, filed complaint against the petitioners with this allegation that a dispute was going on between Sunil Polyplast Ltd. and BICICO and a Title Suit No. 456 of 1994 in the Court of Subordinate Judge-IV Patna was pending. The further allegation was that during the pendency of the Title Suit, an understanding was arrived at between the parties that post dated cheque of Rs. 1,20,42,000.00 vide Cheque No. 508600 was paid to BICICO towards settlement of the dispute with further understanding that the cheques would be encashed only after settlement of the dispute. It was also alleged that six other cheques each for Rs. 1,00,000.00 as detailed in the complaint petition were also given to the BICICO. The complainant alleged that before settlement of the dispute, BICICO obtained payment of four cheques, each of Rs. 1,00,000.00 totalling for Rs. 4,00,000.00 only. It was due to the obtaining payment of Rs. 4,00,00.00 by the BICICO that the complainant had alleged that he has been cheated and, therefore, the complaint was filed. 3. The complainant examined two witnesses who stated on similar lines as per the statement of the complainant stated in the complaint petition. On consideration of the complaint petition, the statement of the complainant on S.A. and the statements of the two witnesses, the learned Magistrate took cognizance of the offences against the petitioners under Sections 420 and 406 I.PC. and ordered for issuance of summons against them to face trial. 4. The complainant says in the complaint petition that an understanding was arrived at between the parties and the post dated cheques were given on the understanding that the payment would be received only after the disputes were settled but there is nothing in writing about such agreement or understanding between the parties. 5. 4. The complainant says in the complaint petition that an understanding was arrived at between the parties and the post dated cheques were given on the understanding that the payment would be received only after the disputes were settled but there is nothing in writing about such agreement or understanding between the parties. 5. The learned counsel for the petitioner submitted that the complainants Company i.e. Sunil Polyplast Ltd. had taken loan of Rs. 90,000.00 from BICICO and the amount of loan and interest were never returned by Sunil Polyplast Ltd. and that for recovery of.the loan and the interest, notices were issued to Sunil Polyplast Ltd. and thereafter Certificate proceedings were also initiated and that the complainant did not disclose in his complaint petition about having taken any loan from BICICO or about non-payment of the loan and interest or about the certificate proceedings and that when recovery processes were taken up, the complaint was filed with false allegations and rather under mischievous design to put pressure upon the petitioners i.e. the Official of the BICICO for proceeding against the complainant in the recovery process. 6. So far the Title Suit is said to have been filed by the complainant, it was submitted that the title suit has been filed by the complainant only for a declaration that the rate of interest as charged by the BICICO under the agreement is excessive and illegal. It was also submitted that even in the title suit, no kind of interim or final relief has been given to the complainant. 7. Referring Annexure-4 (Cr. Misc. No. 5389/03) i.e. the loan agreement entered into between the BICICO and Sunil Polyplast Ltd. it is pointed out that a loan of Rs. 90,000.00 was taken by Sunil Polyplast Ltd. from BICICO. This loan agreement is not disputed by other side. Further referring to Clause 3.3 of the agreement, it was further pointed out that the rate of interest was 12.5 per cent. Further referring to Annexure-5 i.e. repayment schedule it was pointed out that the loan and interest had to be repaid as per the Schedule under the agreement but no payment was made by the complainants company i.e. Sunil Polyplast Ltd. The learned counsel for the petitioner refers to Annexure-7 series i.e. letter dated 13th March, 2002 of the BICICO and points out that BICICO intimated Sunil Polyplast Ltd. for payment of Rs. 235.68 lacs for payment towards principal and interest of the ban amount but it was not paid. This letter is not denied by the other side. Further referring Annexure-7 it is pointed out that the BICICO issued requisition to the Certificate Officer, BICICO at Patna for recovery of the said principal and interest amount of Rs. 235.68 lacs from Sunil Polyplast Ltd. under Public Demand Recovery Act. This requisition is also not denied by the other side. Further referring Annexure-11 i.e. the order dated 24th October, 2002 of the Certificate Officer, as passed in the certificate proceeding initiated for the recovery of the dues from Sunil Polyplast Ltd. it is submitted by the learned counsel that Sunil Polyplast Ltd. appeared in that proceeding and in order to obtain a stay had presented a post dated cheque of Rs. 1,28,42,000.00 payable to the BICICO. On presentation of that cheque, proceeding was stayed. Learned counsel continues to submit that when the post dated cheques were presented for payment on the due date, it was dishonoured by the Bank and that thereafter BICICO had issued notice under Sec.138 of the Negotiable Instrument Act to Sunil Polyplast Ltd. and a complaint was also filed and in that complaint cognizance of offence under Sec.138 of the Negotiable Instrument Act was taken against Sunil Polyplast Ltd. and Sunil Kumar Malhotra, one of the directors of that Company. The pendency of criminal proceeding against Sunil Polyplast Ltd. and its directors under Sec.138 of the Negotiable Instrument Act is also not denied by the other side. 8. With regard to payment of post dated cheques by Sunil Polyplast Ltd. in the certificate proceeding, it is relevant to mention some portions of the order dated 24th October, 2002 of the Certificate Officer: "...This case has also been fixed today to confirm encashment of the cheque for Rs. 1,28,42,000.00 given by the certificate debtor No. 1 towards payment of its dues on account of the loan of certificate holder so that the order for final disposal of the case is passed. The certificate debtor had prayed on 10th August, 2002 that the certificate proceeding should be dropped in the light of the above payment made by the certificate debtor in favour of certificate holder but since the cheque was post dated, the matter was adjourned for final decision after encashment of cheque of Rs. 128.42 lacs. The payment of Rs. The certificate debtor had prayed on 10th August, 2002 that the certificate proceeding should be dropped in the light of the above payment made by the certificate debtor in favour of certificate holder but since the cheque was post dated, the matter was adjourned for final decision after encashment of cheque of Rs. 128.42 lacs. The payment of Rs. 128.42 lacs was made by the certificate debtor after warrant for attachment of movable assets was issued against the certificate debtor Nos. 2 & 3. The said warrant was not executed in the light of said payment of Rs. 128.42 lacs by post dated cheques. it is evident from the petition filed by the certificate holder today that the cheque of Rs. 128.42 lacs issued by the certificate debtor vide Cheque No. 508600 dated 20th September, 2002 has not been honoured and, as such, the certificate holder could not realise the amount. The bouncing of the cheque is a serious matter as the certificate debtors have all along made a prayer in the past for final disposal of the case on the basis of payment by certificate debtor under settlement policy of the certificate holder. The bouncing of the cheque has put a question mark on the very intention of the certificate debtors towards paying the dues of the certificate holder. The certificate holder has stated in its petition that the certificate debtors have intentionally tried to play fraud on the certificate holder and have also tried to mislead this court on above count. It is evidently clear that the certificate debtor has given the cheque for Rs. 128.42 lacs towards the final payment as per the calculation of the certificate debtor." "Now that the cheque in question has bounced, the certificate debtor has come up with various alibies and *ex-ecutes... The certificate debtor Nos. 1 and 2 are directed to pay the dues in terms of certificate issued with interest @ 12 per cent from the date of filing of this case. Let warrant for attachment of movable assets as well as warrant of arrest be issued against the certificate debtor No. 2 Sri Sunil Kumar Mehrotra. The exceptional coercive measures of issuing both types of warrant is being issued keeping in view the exceptional circumstance of the bouncing of cheque of Rs. Let warrant for attachment of movable assets as well as warrant of arrest be issued against the certificate debtor No. 2 Sri Sunil Kumar Mehrotra. The exceptional coercive measures of issuing both types of warrant is being issued keeping in view the exceptional circumstance of the bouncing of cheque of Rs. 128.42 lacs at a stage when the certificate debtor has all along tried to mislead this Court that it has made payment...". 9. Thus as stated above, the order of the certificate officer mentions that Sunil Polyplast Ltd. has made payment of the cheque towards final settlement of the claim but it was filed under a fraudulent attempt and the cheque bounced. The Director of Sunil Polyplast Ltd. are also facing criminal prosecution for offence under Sec.138 of the N.I. Act for the bouncing of the cheque. Learned counsel for the petitioners argued that the order of the certificate officer was passed on 24th October, 2002 and thereafter the complainant filed his complaint on 22nd November, 2002 with false and malicious allegations. 10. On looking to the facts and circumstances of the case in its entirety, I find that the complaint petition has been filed without any specific averment showing any offence and rather relevant and important facts have been suppressed in the complaint petition. The complainant never disclosed in his complaint petition that he had taken loan from the BICICO. It was never disclosed that the complainants Company was facing prosecution for dishonour of the cheque. It was also not disclosed that any certificate proceeding was going on against the complainants Company. The complainants Company appeared in the certificate proceeding and the post dated cheques were filed in that proceeding under the plea that it was filed under settlement of dispute but the cheques were also dishonoured and the certificate officer came to find element of fraud in the filing of cheques. 11. In the facts and circumstances of the case, making of a prima facie case as alleged by the complainant appears to be intrinsically improbable. While taking cognizance of the offence, the learned Magistrate was not able to consider the intrinsic improbability of the offence as alleged by the complainant and, therefore, he took cognizance of the offence. 11. In the facts and circumstances of the case, making of a prima facie case as alleged by the complainant appears to be intrinsically improbable. While taking cognizance of the offence, the learned Magistrate was not able to consider the intrinsic improbability of the offence as alleged by the complainant and, therefore, he took cognizance of the offence. Therefore, I find that the impugned order of the learned Magistrate taking cognizance of offences under Sections 420 and 406 I.P.C. against the petitioners is not fit to be sustained under law hence the same is hereby set aside. 12. In the facts and circumstances of the case, I fell that the complainant has attempted to misuse the process of the court by filing a false complaint with allegations under which the making out of any prima facie case was intrinsically and inherently improbable. Therefore, I feel that the complainant is required to be prosecuted under Sec.182/211 of the I.P.C. The court will hear the parties in the matter after issuing notice to them and then will proceed in accordance with law. 13. With the above observations, these petitions are allowed.