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Madhya Pradesh High Court · body

2010 DIGILAW 1075 (MP)

Mohan Mandelia v. State of M. P.

2010-10-22

INDRANI DATTA

body2010
ORDER Indrani Datta, J. 1. This common order shall govern the disposal of M.Cr.C. No. 2853/2008 (Mohan Mandelia v. State of M.P. and Anr.) and M.Cr.C. No. 3234/2008 (Sant Kumar Sharma v. Rakesh Yadav and Anr.) as they arise out of same order dated 04.02.2008 passed by the learned JMFC Gwalior; whereby, on a complaint filed by Respondent No. 1 Rakesh Yadav, cognizance has been taken against the Petitioners under Section 138 of Negotiable Instruments Act (for brevity "Act") and under Sections 417, 418, 420, 466, 468, 471, 120-B of IPC. 2. Facts in compendium are that Respondent Rakesh filed a complaint against the Petitioners under Section 138 of Act and Sections 417, 418, 420, 465, 467, 468, 471, 120B IPC. As per averments of complaint, Petitioner Mohan Mandelia and accused Beena Mandelia are doing business of making cartons and business is run in the name of GNTV. There was cordial relationship between complainant and Petitioner Mohan. Complainant used to give loan to Petitioner Mohan and his wife accused Beena from time to time and they used to return the said amount to complainant. It is further averred that from the year 2005 to July 2007 on various occasions Rs. 5 lac two times, Rs. 10 lac and Rs. 9 lac i.e. total Rs. 39 lac have been given as loan by the complainant to Petitioner and his wife accused No. 1 and 2. That amount has not been returned by them. When the amount was demanded by the complainant, they tendered one cheque bearing No. 038504 of Bank of India, Phoolbagh Branch, Gwalior dated 08.10.2007 of Rs. 39 lac which was signed by accused No. 1 Beena by assuring that when cheque is presented it will be honoured. After its presentation for encashment, the said cheque stood dishonoured with the endorsement of "insufficient funds". Cheque was returned by Bank of India Phoolbagh Branch in a sealed envelope, it is alleged that when complainant opened the envelope he found that in the Cheque it was mentioned that "Cheque issued for gift, valid up to Rs. 1,000/-". When cheque was given to complainant by Petitioner and co-accused Beena at that time the hand written language and seal was not there. 1,000/-". When cheque was given to complainant by Petitioner and co-accused Beena at that time the hand written language and seal was not there. When information with regard to said cheque was sought from Branch Manager of Bank of India Phoolbagh Branch it was intimated that cheque was submitted by the Oriental Bank of Commerce for clearing which was returned by Bank of India because of insufficient fund and cheque was returned in original and Bank of India is having nothing to do with the seal and hand-written language on the cheque. 3. It is further averred in the complaint that Petitioner Sant Kumar Sharma, Branch Manager of Oriental Bank of Commerce handing in glove with Petitioner Mohan and accused Beena has forged, the cheque by writing on that cheque the words "Cheque Issued for gift, valid up to Rs. 1,000/-". At the time when the cheque was presented in Bank of India words "Cheque issued for gift, valid up-to Rs. 1,000/-" were not there and seal and handwritten language was not there which was found when cheque was returned to complainant on account of insufficiency of funds. Hence, it is apparent that this forgery was committed and seal and aforesaid hand written words were written when cheque was returned to Oriental Bank of Commerce by Bank of India. On this complaint, the learned trial Court recorded the statement of complainant and witnesses under Section 200 and 202 Code of Criminal Procedure and vide order dated 04.02.2008 has taken cognizance against the Petitioners for commission of offence under Sections 420, 467, 468, 471, 120-B IPC and Section 138 of the Act, giving rise to present petitions. 4. It is contended by learned Counsel for Petitioner Sant Kurnar that main dispute of alleged transaction is between the Petitioner Mohan, accused Beena and complainant. Petitioner Sant Kumar is having no role to play. Offence under Section 138 of the Act is not made out against the Petitioner Sant Kumar and the allegations levied are improper. Petitioner as Branch Manager is in no way concerned with the crime. Petitioner Sant Kumar is having no role to play. Offence under Section 138 of the Act is not made out against the Petitioner Sant Kumar and the allegations levied are improper. Petitioner as Branch Manager is in no way concerned with the crime. Cheque presented by complainant in Oriental Bank of Commerce was sent to clearing house from where it was sent to concerned Branch of Bank of India for clearing, which has been returned on account of insufficiency of fund, in whatever fashion cheques are being presented in Bank those are being sent for clearing to concerned Bank. Petitioner is having no role to play. He was discharging his official duty. It is further submitted that there is no documentary evidence that Petitioner Sant Kumar has forged the Cheque and has put-up the seal and hand-written language "Cheque issued for gift, valid up to Rs. 1,000/-" afterwards when cheque was returned from Bank of India to Oriental Bank of Commerce. It is further submitted that there is nothing to connect present Petitioner Sant Kumar with the aforesaid transaction. 5. Learned Counsel drew this Court's attention to citation R. Kalyani v. Janak C. Mehta and Ors. (2009)1 SCC 516 in which, it is held by the Apex Court that vicarious liability can be fastened only by reason of a provision of a statute and not otherwise and for said purpose, a legal fiction has to be created. Relying on the aforesaid citation, it is contended that no vicarious liability can be imposed on Petitioner Sant Kumar as he was acting as Branch Manager of the Bank. 6. Further reliance is placed on Mahesh Chaudhary v. State of Rajasthan and Anr. (2009) 4 SCC 439 in which it is held by the Apex Court that power under Section 482 Code of Criminal Procedure is to be exercised to prevent abuse of process of Court or to secure ends of justice and Court can quash charge-sheet if allegations in FIR or complaint petition do not disclose commission of offence even if on face value they are taken to be correct in their entirety. 7. Over and above, reliance is placed on M. Venkateshwara Rao v. Bollisetty Bapanaiah and Anr. (2005) 1 BC 167. 7. Over and above, reliance is placed on M. Venkateshwara Rao v. Bollisetty Bapanaiah and Anr. (2005) 1 BC 167. In that case Petitioner was Manager of Bank and it was alleged that other accused with connivance of Petitioner have misappropriated the amount of alleged Cheque given by Respondent to accused and it was held that since the conspiracy attributed to Petitioner in his passing the cheque in connivance with the other accused and since there is no other allegation against him and since the Petitioner cannot be said to have acted inviolation of provisions of Act in passing the cheque which contained signature of 1st Respondent, he cannot be said to have committed any offence against 1st Respondent and it was held that even if all the allegations in the complaint are taken to be true, since no offence is made out against the Petitioner, therefore, complaint against him is liable to be quashed. 8. That apart, reliance is placed on Hiralal and Ors. v. State of Uttar Pradesh and Ors. (2009) 11 SCC 89 in which it is held that the parameters of interference with a criminal proceeding by the High Court in exercise of its jurisdiction under Section 482 Code of Criminal Procedure are well known. One of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide. Similar observations have been made by the Apex Court in a case relied upon by the learned Counsel for the Petitioner in Dalip Kaur and Ors. v. Jagnar Singh and Anr. (2009) 14 SCC 696 and Rukmini Narvekar v. Vijaya Satardekar and Ors. (2008) 14 SCC 1 . 9. Placing reliance on these citations it is urged that the Petitioner being Branch Manager, has no specific role and he has only forwarded the cheque for clearance in the Bank and after receiving from Bank of India again sent the cheque to complainant. No specific allegation is made against him that he has acted in violation of Banking Act and hence no case is made out against him and proceedings initiated against him deserve to be quashed. 10. No specific allegation is made against him that he has acted in violation of Banking Act and hence no case is made out against him and proceedings initiated against him deserve to be quashed. 10. Many fold submissions has been urged by learned Counsel for the Petitioner Mohan. His first submission is that procedure adopted by the learned Magistrate is not proper. Learned Counsel for the Petitioner placed reliance in Ratish Rai v. Mohesh Singh 1985 Cri. LJ. 94, in which it is held that examination of complainant adds to credibility of complai nt at initial stage and complaint being foundation of entire proceedings should have test of credibility by examining complainant on oath as regards facts of complaint. Placing reliance on this citation, it is submitted that as the learned Magistrate has recorded the statement of witnesses of complainant first. Mahendra and Mohan were examined on 04.01.2008 thereafter complainant was examined on 20.01.2008. It is stated that complainant should have been examined first and thereafter statement of his witnesses were to be recorded. It is further submitted that J.P. Sharma Branch Manager of Bank of India, Phoolbagh Branch who has been mentioned as accused in complaint was examined on 21.01.2008 in trial Court and that is against law. The whole proceedings are void ab initio as after his examination, the learned trial Court has taken cognizance against him on 04.02.2008 arbitrarily and thereafter on the application filed by complainant his name was deleted from the array of complaint on 27.06.2008, hence after passing the order of taking cognizance against accused No. 4 mentioned in the complaint, that order cannot be recalled. 11. Learned Counsel for the Petitioner Mohan placed reliance on Adalat Prasad v. Rooplal Jindal and Ors. AIR 2004 SC 4674; wherein, it is held that once cognizance of offence is taken and summons are issued then recalling of that order by Magistrate is without jurisdiction. It is further submitted by learned Counsel that in view of the above, all the proceedings are de hors the law. 12. Second submission raised by learned Counsel for the Petitioner Mohan is that complainant has not mentioned that how Petitioner has arranged the huge amount of Rs. 39 lac and endorsement in the cheque is also not proper. It is further submitted by learned Counsel that in view of the above, all the proceedings are de hors the law. 12. Second submission raised by learned Counsel for the Petitioner Mohan is that complainant has not mentioned that how Petitioner has arranged the huge amount of Rs. 39 lac and endorsement in the cheque is also not proper. The Petitioner has made one application to Bank of India for stop payment on the ground that bag containing cheque No. 038503 and 038504 of Bank of India Phoolbagh have been lost and one publication was also made in newspaper concerning the fact that bag containing disputed cheque has been taken-away from factory campus by somebody, hence cheque cannot be returned with the endorsement of "insufficient funds". 13. Further reliance is placed on A. Bhoosanrao v. Purushothamdas Pantani and Anr. 1998 Cri.L.J. 906. In that case complainant failed to prove that he had sufficient capacity to lend that amount that too by cheque and he also failed to prove such amount was actually drawn by accused, hence it is held that accused is not liable to be punished for offence under Section 138. 14. Third submission is made that the factory of Petitioner is situated at Morena and payment was made at Morena. Hence, Gwalior Court has no jurisdiction to deal with the case and complainant has maliciously implicated the Petitioner Mohan and Sant Kumar, therefore, the entire proceedings deserve to be quashed. 15. Reliance is placed on Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. AIR 2008 SC 251 ; wherein, it is held that power under (Section) 482 Code of Criminal Procedure exists for advancement of justice and injustice by abuse of process of Court can be prevented by exercising inherent powers. 16. Further, reliance is placed on M.N. Ojha and Ors. v. Alok Kumar Srivastav and Anr. (2009) 9 SCC 682 . In that case complaint was filed against bank official as counter blast to action taken by them in their official capacity for realizing loan amount due and intention behind initiating criminal proceedings was to prevent public servants from discharging their duties. Averments and allegations made in complaint not disclosing any commission of offence by Appellant, criminal proceedings initiated against accused persons were quashed. 17. Averments and allegations made in complaint not disclosing any commission of offence by Appellant, criminal proceedings initiated against accused persons were quashed. 17. Relying on the aforesaid dictum, it is submitted by learned Counsel for the Petitioner Mohan that this is a fit case for invoking inherent powers enshrined under Section 482 of Code of Criminal Procedure as no prima facie case is made out against the Petitioner Mohan. 18. Combating the claim of the Petitioners, the learned Counsel for the Respondents vehemently opposed the petition and submitted that the order of the learned trial Court of taking cognizance against the Petitioners is legal and proper and requires no interference. It is further submitted that the Petitioner Mohan and his wife Beena have joint account in Bank of India, hence they are jointly responsible for cheque given by Beena to complainant which was duly signed by Beena and eventually stood dishonoured. It is further submitted that as per statement of complainant's witness No. 4 J.P. Sharma, Branch Manager of Bank of India that their bank has not issued any gift cheque book to Petitioner Mohan and only general cheque book was issued to the Petitioner and disputed cheque No. 038504 is a general cheque. It is submitted by learned Counsel on behalf of Respondent that from the statement of J.P. Sharma, Branch Manager of Bank of India, it is crystal clear that when cheque was presented for encashment in Bank of India at that time words "cheque issued for gift, valid up to Rs. 1,000/-" were not there and that seal and hand-written language was forged afterwards when cheque was returned and was in possession of Petitioner Sant Kumar Branch Manager of Oriental Bank of Commerce, hence he is also similarly responsible with Petitioner Mohan and other accused for forgery of cheque and for conspiracy also. It is further submitted that when the statement of witness No. 4 J.P. Sharma Branch Manager was recorded in the trial Court at that time he was only a proposed accused, hence the learned trial Court has not acted beyond jurisdiction and as such the order is infallible and requires no interference by this Court in a petition under Section 482 Code of Criminal Procedure. 19. Heard the learned Counsel for the parties at length and perused the documents on record. 20. 19. Heard the learned Counsel for the parties at length and perused the documents on record. 20. At this juncture, it would be apposite and justifiable to go-through the provisions of Section 202 and 2(g) of Code of Criminal Procedure, 1973. Section 202 reads as follows: 202. Postponement of issue of process- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) in an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. Section 2(g) reads as follows: "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. 21. It is apparent on bare reading of these Sections that when Magistrate takes a cognizance of a complaint presented before him, a person mentioned in the array of accused does not assume status of "accused". Section 2(g) reads as follows: "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. 21. It is apparent on bare reading of these Sections that when Magistrate takes a cognizance of a complaint presented before him, a person mentioned in the array of accused does not assume status of "accused". Whenever he accepts the complaint and starts the inquiry, it means he has considered the complaint and decided to proceed further, that does not mean any legal parlance "taking cognizance". At this stage it cannot be said that a person who has been mentioned in the complaint as an accused acquires the status of "accused". That takes me to further inference that Magistrate is competent to examine any person deemed fit for unfolding the issue and providing him sufficient information to conclude whether really that person or proposed accused need to be proceeded against by issuing process. For his inquiry he can examine such person who has not acquired the stat us of an "accused", though it may not pleasant to the test. The action of the Magistrate which has been challenged in this petition by learned Counsel on behalf of Petitioner Mohan is improper keeping in view the provisions of Section 2(g) and 202 of Code of Criminal Procedure though the Magistrate has not given the reason supporting his action, his action, cannot be treated to be giving pardon to an accused as indicated by Section 306 of Code of Criminal Procedure. Therefore, I have no hesitation in coming to a conclusion that provisions of Code of Criminal Procedure have not been throttled and such an action cannot be treated to be something else than inquiry started by Magistrate for collecting the information enabling him to come to a correct conclusion in the spirit of relevant provisions of Code of Criminal Procedure. It is also apparent that when Shri J.P. Sharma was examined before the learned trial Court, the trial Court has not taken cognizance against him and he was only proposed accused mentioned in the complaint. Hence, submission of learned Counsel for the Petitioners that proper procedure has not been adopted by learned Magistrate and proceedings are void ab initio, is worthless and cannot be accepted. 22. Hence, submission of learned Counsel for the Petitioners that proper procedure has not been adopted by learned Magistrate and proceedings are void ab initio, is worthless and cannot be accepted. 22. So far as contention that the learned trial Court has erred in recording the statement of witnesses of complainant first and then recorded the statement of complainant is concerned, it is mere an irregularity and not illegality, hence it is not a ground to quash or hold that all the proceedings are void ab initio. 23. So far as the point of jurisdiction is concerned, it is apparent that in the statement recorded under Section 202 Code of Criminal Procedure complainant in paragraph 4 has specifically stated that Cheque of Rs. 39 lac was handed-over by Petitioner Mohan at Gwalior in his house, hence Gwalior Court has jurisdiction. 24. As far as other points raised by the learned Counsel for the Petitioners Sant Kumar and Mohan are concerned, they touch the merits of the case. The parties are to go for trial and all these points are to be decided after evidence is recorded in concerned trial Court. 25. The provisions of Section 482 Code of Criminal Procedure are to be used in the case where order challenged is against law, totally against material available on record, or perverse. 26. In State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) S.C.C. 335, in which following categories of cases are stated by Hon'ble Apex Court by way of illustration, wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure ends of justice, (1) Where the allegations made in the first information, report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where in allegations in the first information report and other materials, if any, accompanying the FIR do not disclose cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where in allegations in the first information report and other materials, if any, accompanying the FIR do not disclose cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where in the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. On perusal of the record of learned trial Court, it is apparent that case of complainant is not covered under any of the categories mentioned in above case, therefore, this is not a fit case to invoke the power under Section 482 of Code of Criminal Procedure. 27. Resultantly, considering the above legal position so also the material available on record, no ground is made out for quashing the criminal proceedings at this stage while exercising the power conferred under Section 482 of Code of Criminal Procedure. Accordingly, both the petitions are dismissed.