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2009 DIGILAW 1018 (PAT)

Binod Kumar v. State of Bihar

2009-08-03

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ORDER 1. The petitioner who has been arrayed as the sole accused in Complaint Case No.400(C) of 2006 has prayed for quashing of the order dated 6.5.2006 passed therein by the learned Chief Judicial Magistrate, Nalanda at Biharsharif, whereby he made over the Complaint Case to the learned Sub-Divisional Judicial Magistrate, Nalanda at Biharsharif under Section 192(1) Cr. P.C. for enquiry and trial without taking any cognizance as also the order dated 5.7.2006 passed therein by the transferee court whereby he has taken cognizance against the petitioner for offences under Sections 420 and 120B I.P.C. and Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the N.I. Act"). 2 Unfortunately, the petitioner has challenged two different and distinct orders of two different stages in this application which is neither permissible nor in consonance with law. A Division Bench of this Court by order dated 7.11.2008 passed in I.A. No.1052 of 2008 in connection with Cr. Misc. No. 56240 of 2006 deprecated seeking multiple reliefs, not connected with each other, in one application. 3. However, I propose to deal with both the issues. 4. So far the first point regarding the learned Chief Judicial Magistrate transferring the Complaint Case to the court of the learned Sub-Divisional Judicial Magistrate without taking any cognizance is concerned, the law is no more res integra. In Anil Saran Vs. The State of Bihar reported in 1996 (1) P.L.J.R. (SC) 5 the Hon'ble Apex Court observed as follows:- 5. “We find no force in the contention. Though the Code defines "cognizable offence" and "non-cognizable offence", the word 'cognizance' has not been defined in the Code. But it is now settled law that the court takes cognizance of the offence and not the offender. As soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report etc. cognizance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence. Whether the Magistrate has taken cognizance of offence on a complaint or on a police report or upon information of a person other than the police officer, depends upon further action taken pursuant thereto and the attending circumstances of the particular case including the mode in which case is sought to be dealt with or the nature of the action taken by the Magistrate. Under sub-section (1) of Section 190 of the Code, any Magistrate may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 6. Sub-section (1) of Section 192 has conferred a special power on the Chief Judicial Magistrate, as, normally, the Magistrate taking cognizance of an offence, has himself to proceed further as enjoined by the Code. But, an exception has been made in the case of Chief Judicial Magistrate, may be because he has some administrative functions also to perform. A Magistrate who receives the case on transfer and takes cognizance would not become incompetent to do so merely because the sanction of transfer of the case to his file is not in accordance with law. The power to take cognizance has been conferred on co Magistrate by Section 190(1) of the Code and he would not be denuded of this power because the case has come to his file pursuant to some illegal order of the Chief Judicial Magistrate. The former would be exercising his power of taking cognizance even in such a case, because of his having received a complaint constituting the offence. It would not be material, for this purpose, as to how he came to receive the complaint directly or on transfer from the Chief Judicial Magistrate”. 4. In view of the categorical findings of the Hon'ble Apex Court, the first submission advanced by the learned counsel for the petitioner has no legs to stand. 5. Now I will test the propriety and bona fides of the order dated 5.7.2006 passed by the learned Sub-Divisional Judicial Magistrate, Nalanda at Biharsharif, whereunder he has taken cognizance. 6. One Vishwajit Kumar, the complainant, impleaded herein as opposite party no. 2, filed the aforesaid complaint stating therein that he and his wife Sushila Devi had opened two separate Recurring Deposit Accounts through the petitioner, claiming to be an agent of Sahara India. It is alleged that the petitioner collected the amount every day from the complainant and his wife but never deposited the same in their accounts, which fact they came to know only after 39 months when the accounts had matured. It is alleged that the petitioner collected the amount every day from the complainant and his wife but never deposited the same in their accounts, which fact they came to know only after 39 months when the accounts had matured. It is alleged that for misconduct of the petitioner, the complainant and his wife had filed Complaint Case Nos. 96 of 1996 and 88 of 1988 respectively before the District Consumer Forum, Biharsharif against Sahara India, Biharsharif and the petitioner and the Forum having found the Chairman of Sahara India and the petitioner guilty by its order dated 24.3.2004 directed for payment of the accumulated sum in both the accounts with interest at the rate of 9% per annum and both of them were fined Rs. 1,0001- each. The Forum further directed that both the accused would be liable to pay 1/2 the amounts equally. It was further alleged that Execution Case No. 15 of 2004 was levied by the complainant. A sum of Rs. 31,600/- was paid to the complainant and his wife by Sahara India but the petitioner evaded making payment and after his appeal before the State Consumer Forum was dismissed then on 5.12.2005 he issued a cheque of Rs. 5,000/ signed by his wife Pratibha Sinha drawn on the Nalanda Gramin Bank and the same was enchased. However, two subsequent cheques dated 16.1.2006 and 11.2.2006 each for Rs. 5,000/- which were handed over to the complainant by Pratibha Sinha bounced on 6.3.2006 and 7.3.2006 and information thereof was given to the District Consumer Forum, Biharsharif on 17.3.2006. It is stated that on that very day the petitioner pleaded before the complainant and his wife for some mercy since he had spent all his money in arrangement of the marriage of his daughter which unfortunately failed and as he was hoping for return of the money he expected to make payment to the complaint and his wife by 10.4.2006. However, when the amount was not paid by 10.4.2006, he pleaded before the Forum for one month's time to enable him to sell his lands and refund the money to the complainant and his wife. However, when the amount was not paid by 10.4.2006, he pleaded before the Forum for one month's time to enable him to sell his lands and refund the money to the complainant and his wife. However, on the appointed day notwithstanding repeated calls the accused failed to appear whereupon the court verbally directed the complainant to take resort to the criminal court and also issued show cause notices to the accused as to why warrant of arrest and process under Sections 82 and 83 Cr. P.C. be not issued against him. It is also alleged that the verbal orders of the District Consumer Forum notwithstanding the complainant gave notice to the accused requiring him to pay the amount within 15 days with interest and having received the same the accused avoided making payment. 7. Assailing the impugned order taking cognizance the learned counsel for the petitioner submitted that the same is neither admissible nor permissible under the law and is an abuse of the process of the court. 8. Reliance was sought to be placed on the decision of M/s Zandu Pharmaceuticals Works Vs. Md. Sharaful Haque reported in 2004 (8) Supreme 31 wherein it was observed that where criminal complaint appeared to be a sheer abuse of the process of law. It was liable to be quashed. Reliance was also placed on the decision of the Sanjay Kumar Vs. The State of Bihar reported in 1999(2) P.L.J.R. 913 wherein it was observed that a liability arising out of breach of contract is of civil nature and not of criminal nature. For similar view reliance was also placed on the decision of M.L. Dalmia Ltd. Vs. The State of Bihar reported in 2006(3) P.L.J.R. 331. Several other decisions were also cited none of which have any bearing on the issue involved in this case. 9. In the instant case unfortunately notwithstanding the order of the District Consumer Forum, the petitioner had failed to comply with the said order. That apart he had also issued cheques which had bounced and notwithstanding the District Consumer Forum having granted him time he even then avoided making payment. 10. Section 406 I.P.C. contemplates the creation of a relationship whereby the owner of the property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening on a certain event. 10. Section 406 I.P.C. contemplates the creation of a relationship whereby the owner of the property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening on a certain event. 11. In the instant case the petitioner had collected money from the complainant and his wife on behalf of Sahara India and instead of depositing the amount in their accounts had retained the same with himself and even after he was found guilty by the District Consumer failed to do so. By his action the petitioner appears to have committed the offences under Sections 406 and 420 I.P.C. as the ingredients of both the Sections are present and even the intention to cheat and commit criminal breach of trust is writ large in his conduct. 12. Due regard being had to the facts and circumstances of the case. I find no merit in this application which is accordingly dismissed.