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Madhya Pradesh High Court · body

2009 DIGILAW 623 (MP)

G. D. Choudhary v. Vishnukumar Bhaiya

2009-05-08

N.K.MODY

body2009
ORDER 1. This is a petition under Section 482 Cr.P.C. for quashment of the proceedings of cri. case No. 1529/05 pending before JMFC, Indore wherein cognizance of offence punishable under Section 420 IPC has been taken by the learned Court below vide order dated 13.12.2005. 2. Short facts of the case are that respondent No. 1 filed a complaint before the learned trial Court on 21.7.2005 alleging that respondent No. 1 is resident of 78-B Manishpuri Colony, Indore and was Managing Director of a company registered under the provisions of Companies Act known as M/s. Janak Intermediates Ltd. It was alleged that one Ashok Kumar Jain was one of the Directors of the company. In the complaint it was alleged that petitioner is carrying his business at Mumbai in the name and style of M/s. G.D. Choudhary and Company. In the complaint it was alleged that Ashok Kumar Jain was in possession of some blank cheques and some letter pads duly signed by the respondent No. 1. It was alleged that cheque Nos. 027457 and 027458 along with letter pads which were signed by the respondent No.1 and were in possession of A.K. Jain were lost on 19.5.95 when he was travelling on his scooter at Race Course Road, Indore. It was alleged that immediately thereafter a complaint was lodged by AX. Jain at P. S. Tukoganj, Indore. In the complaint filed by the respondent it was alleged that on the basis of blank cheques and letter pads, forged cheques have been prepared by the petitioner and on the basis of that a complaint has been filed under Section 138 of the Negotiable Instruments Act (which shall be referred hereinafter as "the N.1. Act" for brevity) which is registered at case No. 947/ S/2002 pending in the Court of 25 Metropolitan Magistrate Small Cause Court, Mumbai. 3. It was alleged that aforesaid cheques on the basis of which private complaint has been filed by the petitioner under Section 138 of the N.1. Act were never given by the respondent No.1 to the petitioner. It was also alleged that figures, dates and other particulars were also not filled in by the respondent No.1. 3. It was alleged that aforesaid cheques on the basis of which private complaint has been filed by the petitioner under Section 138 of the N.1. Act were never given by the respondent No.1 to the petitioner. It was also alleged that figures, dates and other particulars were also not filled in by the respondent No.1. It is submitted that the matter which has been written on the letter pad which is signed by the respondent No. 1 also has been got typed by the petitioner and a forged document has been prepared to get undue advantage of the lost cheques. It was alleged that all these documents i.e. cheques and letter head were filed by the petitioner before the Metropolitan Magistrate, Mumbai on 16.3.2005 for the first time and after receipt of the copy of the same, on that very day the complainant was informed by A. K. Jain that cheques and letter heads were never given to the petitioner and complaint was also lodged. In the complaint it was alleged that the petitioner has committed the offence of forgery. It was alleged that petitioner be prosecuted for the offence under Section 406, 420, 465, 468 and 471 IPC. It was prayed that after taking cognizance of the offence the petitioner be convicted. After filing of the complaint and also after recording of evidence adduced by the respondent, cognizance of the offence was taken by the learned trial Court under Section 420 IPC vide order dated 13/12/2005. After service of the notice petitioner filed a petition before this Court under Section 482 Cr.P.C for quashment of the proceedings and also for quashment of the order impugned herein. 4. Learned counsel for petitioner submits that petitioner is a businessman and was having business at Mumbai in the name and style of M/s. G.D. Choudhary and Company which is proprietorship concern. It is submitted that petitioner filed a private complaint under Section 138 of the N.I Act against the respondent on 6.3 .1997 wherein it was alleged that a cheque of Rs.2 Crores was given by the respondent to the petitioner which was bounced upon presentation and amount was not paid inspite of notice of demand. It is submitted that present complaint filed by the respondent is a counterattack of the complaint filed by the petitioner and pending before Metropolitan Magistrate, Mumbai. It is submitted that present complaint filed by the respondent is a counterattack of the complaint filed by the petitioner and pending before Metropolitan Magistrate, Mumbai. It is submitted that according to the complainant respondent the cheques were lost on 19.9.95 while complaint was filed by the respondent against the petitioner on 21.7.05 i.e. after a long delay of more than 10 years. It is submitted that complaint on the fact-it is a false one as is evident that before filing the Complaint under Section 138 of the N.I. Act the petitioner issued a statutory notice on 18.1.97 which was duly replied by the respondent No.1 in which it was alleged by the respondent No.1 that petitioner was instructed well in time not to en cash the cheque. It is submitted that reply given by the respondent No.1 is contrary to the allegation made in the complaint filed. It is submitted that on the face of it the complaint deserves to be quashed. For this contention, learned counsel placed reliance on a decision in the matter of Som Mittal v. Govt. of Karnataka, (2008) 3 SCC 574 wherein it was held by the Hon' ble Apex Court that "when the words "the rarest of rare cases" are used after the words "sparingly and with circumspection" while describing the scope of Section 482 Cr.P.C. those words merely emphasise and reiterate what is intended to be conveyed by the words "sparingly and with circumspection". They mean that the power under Section 482 Cr.P.C. to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "the rarest of rare cases" is not used in the same sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 C.r.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection. The expression "the rarest of rare cases" is not used in the same sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 C.r.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection. It may not, therefore, be correct to say that the words "the rarest of rare cases" are appropriate only when considering death sentence for an offence under Section 302 IPC or that those words are inappropriate when referring to the ambit of the power to be exercised under Section 482 Cr.P.C. Learned counsel further placed reliance on a decision in the matter of Sunil Kumar v. Escorts Yamaha Motors Ltd. (1999) 8 SCC 468 wherein cheques given were bounced and FIR was lodged u/s 420, 468 IPC alleging that an offence has been committed u/s 420, 406 and 468 IPC by an act of conspiracy committed criminal breach of trust by presenting for encashment of blank cheques signed by the appellant for a purpose other than that for which the cheques had been given to them and thereby causing to the appellant loss of a certain amount it was held that from the fact that for criminal breach of trust, circumstances indicated that FIR was lodged to pre-empt the filing of complaint under Section 138 of the N.I. Act. On the strength of these decisions learned counsel for petitioner submits that the petition filed by the petitioner be allowed and criminal case registered against the petitioner be quashed. 5. Mr. Vishal Baheti, learned counsel for respondent No.1 submits that no illegality has been committed by the learned trial Court in taking cognizance of the offence punishable u/s. 420 IPC against the petitioner which can be corrected by this Court while exercising the jurisdiction u/s. 482 Cr.P.C. Learned counsel submits that complaint was lodged by Shri A.K. Jain one of the Directors of the company of which the respondent was the Managing Director on 19/5/95 itself at P.S. Tukoganj, Indore. Learned counsel further submits that respondent No.1 was not knowing the fact that cheques have been stolen or found by the petitioner. It is submitted that this fact came to the notice of the respondent No.1 only on 16.2.2005 when the cheque and letter head was produced by the petitioner in cri. case pending at Metropolitan Magistrate, Mumbai. Learned counsel further submits that respondent No.1 was not knowing the fact that cheques have been stolen or found by the petitioner. It is submitted that this fact came to the notice of the respondent No.1 only on 16.2.2005 when the cheque and letter head was produced by the petitioner in cri. case pending at Metropolitan Magistrate, Mumbai. It is submitted that immediately thereafter another complaint was lodged by respondent No.1 at P.S. Tukoganj, Indore. Immediately thereafter a private complaint was also filed under section 420 IPC therefore it cannot be said that there was inordinate delay on the part of respondent No.1. So far as ·alleged reply of the statutory notice issued by the petitioner before initiating proceedings under Section 138 of the N.C. Act is concerned, learned counsel submits that alleged reply dated 14/1/97 is not on record. It is submitted that there is nothing on record on the basis of which it can be said that complaint filed by the respondent No.1 is frivolous or abuse which can be corrected by this Court under Section 482 Cr.P.C. For this contention, learned counsel placed reliance on a decision of Hon. Apex Court in the matter of M/s Suryalaxmi Cotton Mills v. M/s. Rajvir Industries Ltd. AIR 2008 SC 1683 wherein Hon. Apex Court has observed that "Ordinarily, a defence of an accused although appears to be punishable should not be taken into consideration for exercise of inherent powers to quash criminal proceedings. The High Court at that stage would not ordinarily enter into it disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost or the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused. Although it is true that in a large number of disputes which should ordinarily be determined only by the Civil Courts, criminal cases are filed only for achieving the ultimate goal namely to force the accused to pay the amount due to the complainant immediately. Although it is true that in a large number of disputes which should ordinarily be determined only by the Civil Courts, criminal cases are filed only for achieving the ultimate goal namely to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice, but on the other cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine." Learned counsel further submits that all the contentions raised by the petitioner is possible defence on the basis of which the complaint filed by the respondent No.1 cannot be dismissed. In view of this it is submitted that petition filed by the petitioner be dismissed. Learned counsel further submits that offence for which the cognizance has been taken by the learned Court below is under Section 420 IPC which is non-cognizable and there is express provision under Section 245 (I) Cr.P.C. wherein upon taking all the evidence referred to in Section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if un rebutted, would warrant his conviction, the Magistrate shall discharge him. On the strength of the aforesaid decision learned counsel for the respondent No.1 submits that the petition filed by the petitioner be dismissed. 6. From perusal of the record it appears that petitioner prosecuted the respondent No.1 under Section 138 of Negotiable Instruments Act by filing a complaint on 6th of March 1997. In the said complaint all the particulars of cheques were stated and it was also stated that the cheques was delivered along with a covering letter. In the said complaint it was also stated that the notice of demand which is statutory requirement of law was issued by the petitioner before filing the complaint on 18th of January, 1997, which was duly replied and it was never the case of the respondent No.1 that that' the cheque upon which the complaint has been filed were lost. The present complain has been filed by the respondent No.1 on 21.7.05, for this inordinate del a the explanation of respondent No.1 is that the respondent No. 1 came t know about the full facts only when the cheques were presented by the petitioner in the Court and immediately thereafter further complaint was lodge by the respondent No.1 on 20.6.05. The present complain has been filed by the respondent No.1 on 21.7.05, for this inordinate del a the explanation of respondent No.1 is that the respondent No. 1 came t know about the full facts only when the cheques were presented by the petitioner in the Court and immediately thereafter further complaint was lodge by the respondent No.1 on 20.6.05. Prior to it a handwritten complaint ha been lodged on 19.5.95. The authenticity of the complaint is also doubtful Inspite the fact that the details of the cheques which alleged to have been lost was known to the respondent No.1 right from the day when the notice under Section 138 of N.I. Act was received by the respondent No.1 and thereafter when the complaint was filed by the respondent No.1, no action was taken by the respondent No. 1 for 8 years. Bearing in mind the law laid down by the Apex Court in the cases referred to hereinabove and the contention raised by the learned counsel appearing for the parties and on examining the allegations made in the complaint, this Court is persuaded to accept the submission of the counsel for the petitioner that no offence of cheating has been made out against the petitioner and on the other hand the attending circumstances indicate that the criminal case was lodged to counter the criminal complaint filed by the petitioner under Section 138 of N.I Act. In view of this, this Court is well within its power for quashing the complaint otherwise it would tantamount to abuse the process of the Court. Thus, the petition filed by the petitioner is allowed and the criminal case filed by the respondent No.1 against the petitioner registered as criminal case No. 1529/05 pending in the Court of JMFC, Indore and also the order dated 13.12.2005 whereby the congnizance of the offence was taken by the learned Court below stands quashed.