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2011 DIGILAW 553 (JHR)

Vinayak @ Binayak Sinha v. State of Jharkhand

2011-06-27

D.K.SINHA

body2011
JUDGMENT: D.K.Sinha, J .The petitioner has invoked the inherent jurisdiction of this Court for quashment of his entire criminal proceeding arising out of P.C.R. Case No.509 of 2007, corresponding to T.R.No.146 of 2010 including the order impugned dated 20.01.2009 by which cognizance of the offence was taken under Section 420 of the Indian Penal Code against the petitioner by the S.D.J.M., Deoghar. 2. The complainant’s story in short was that the complainant-O.P.No.2 was having friendship with the petitioner and that cordial relationship was existing from before between them. The petitioner was doing business of supply and agency of medicines and it was alleged that he asked the complainant by suggesting to start medical agency which would yield good return on investment of paltry sum of Rs.50,000/- with the assurance that he would provide assistance in securing medical agency for him. It was further alleged that the complainant-Opposite Party No.2 having relied upon the assurance made by the petitioner, got Demand Draft No.3822697 of the State Bank of India, Jasidih prepared in favour of Wipson Pharmaceuticals Pvt. Ltd., New Delhi and got another Bank Draft No.382259 prepared by the same Branch in favour of Baba Bashukinath Enterprises, Ranchi and both the D/D worth Rs. 50,000/- were delivered to the petitioner-accused obtaining his signature on the Xerox copies of each draft as token of receipt in presence of the witnesses but after lapse of time when neither agency was given nor money was returned to him in spite of his repeated requests and reminders the complainant O.P.No.2 then finally sent a legal notice to the petitioner on 06.03.2007. The petitioner-accused then requested the complainant to grant him some time till 27th June, 2007 for repayment of the amount which was given to him securing the agency but since the petitioner denied having accepted such amount at the later stage the complainant filed the complaint for the alleged offence under Sections 419/420 of the Indian Penal Code. After enquiry of the complaint, the S.D.J.M. found a prima facie case against the petitioner for the alleged offence under Section 420 of the Indian Penal Code and accordingly summons were directed to be issued against the petitioner-accused which is the subject matter of challenge in the instant petition. 3. Learned Counsel Mr. After enquiry of the complaint, the S.D.J.M. found a prima facie case against the petitioner for the alleged offence under Section 420 of the Indian Penal Code and accordingly summons were directed to be issued against the petitioner-accused which is the subject matter of challenge in the instant petition. 3. Learned Counsel Mr. Prasad appearing for the petitioner submitted that the petitioner had moved for his anticipatory bail before the Sessions Judge, Deoghar which was considered appreciating the ground that the drafts were not issued in favour of the petitioner so as to attract his wrongful gain. The first Bank draft of Rs.25,000/- was issued in favour of Baba Bashukinath Enterprises, Ranchi on 17.07.2003 and the second Demand Draft of the same denomination was issued in favour of M/s Wipson Pharmaceuticals Pvt. Ltd., New Delhi. The drawee Bank of the alleged first Bank Draft was the Ranchi Branch of the State Bank of India drawn in favour of Baba Bashukinath Enterprises whereas the second D/D was issued to the Branch at New Delhi. Upon appreciation of such defence, the petitioner was admitted to anticipatory bail. Further defence of the petitioner was that none of the demand drafts was issued in favour of the petitioner so as to attract his criminal liability. The complainant was not holding any drug licence, a condition precedent for grant of agency of medicine without which agency could not be granted to any person willing to deal in medicines. Even no registration number of State Sales Tax or the Central Sales Tax could be produced by the complainant in this connection. As a matter of fact, the Demand Draft No.382259 dated 17.09.2003 for Rs.25,000/- issued to the drawee Baba Bashukinath Enterprises, Ranchi was presented in its office by the Proprietor of “Maa Tara Pharmaceuticals, M. Chatterjee Lane, Deoghar and in lieu of that, medicines were supplied to “Maa Tara Pharmaceuticals against the said draft. As a matter of fact, the Demand Draft No.382259 dated 17.09.2003 for Rs.25,000/- issued to the drawee Baba Bashukinath Enterprises, Ranchi was presented in its office by the Proprietor of “Maa Tara Pharmaceuticals, M. Chatterjee Lane, Deoghar and in lieu of that, medicines were supplied to “Maa Tara Pharmaceuticals against the said draft. 4.Similarly, the Proprietor of “Maa Tara Pharmaceuticals, M. Chatterjee Lane, Deoghar presented Demand Draft No.382260 of Rs.25,000/- being the part payment of medicines supplied to him by the Wipson Pharmaceuticals Pvt. Ltd., New Delhi and the same was received against the receipt No.501 and therefore both the Demand Drafts (or Bank drafts) claimed to be drawn by the complainant were issued to two different firms and the same were received by the respective firms and accordingly medicines were supplied to the drawer “Maa Tara Pharmaceuticals, M. Chatterjee Lane, Deoghar and therefore, the prosecution of the petitioner for the alleged offence under Section 420 of the Indian Penal Code was not sustainable thus it would amount to abuse of the process of the Court. 5. Raising the next point Mr. Prasad submitted that the complaint was filed after lapse of 4 years of the alleged date of occurrence i.e. on 17.09.2003 and for that no plausible explanation could be accorded for such inordinate delay. The complainant tried to explain the delay by giving false statement that the petitioner had given assurance for repayment until 27.06.2007 to which the petitioner denied having made any assurance. The petitioner in his reply to the legal notice had categorically denied the allegations. The learned Counsel asserted that even on plain reading of the statement of the witnesses recorded during course of enquiry, no prima facie offence could be attracted under Section 420 of the Indian Penal Code against the petitioner and the learned S.D.J.M. failed to spelt out in the impugned order as to how the petitioner accused cheated the complainant when the money was not transferred by drawing Demand Draft in favour of the petitioner rather in favour of two different pharmaceutical firms and that too by one Amlendu Chatterjee. 6. 6. The Complainant-Opposite Party No.2 by filing his counter-affidavit stated that the accused petitioner had criminal intention to cheat him from the very beginning and upon his persuasion two Demand Drafts were prepared of Rs.25,000/- each in favour of M/s Baba Bashukinath Enterprises, Ranchi and M/s Wipson Pharmaceuticals Pvt. Ltd., New Delhi each on the assurance that agency of the medicines would be secured to him on his instance. Both the Demand Drafts were received by the petitioner-accused who in token of receipt had put his signatures on the Xerox copies of the Demand Drafts (Annexure-A and A/1). The petitioner-accused after receiving Demand Drafts from the complainant-Opposite Party used it as Hundi and delivered to M/s Maa Tara Pharmaceuticals, M. Chatterjee Lane, Deoghar, who in turn used both the Demand Drafts by settling its account with M/s Baba Bashukinath Enterprises, Ranchi and M/s Wipson Pharmaceuticals Pvt. Ltd., New Delhi for gains and in that manner the petitioner-accused cheated the complainant which attracted the offence under Section 420 of the Indian Penal Code. A legal notice was sent in which he made evasive reply. It was admitted that the said two drafts of Rs.25,000/- each were handed over to the respective persons in whose names the drafts were drawn by Shri Amlendu Chatterjee, Proprietor of Maa Tara Pharmaceuticals Pvt. Ltd., Deoghar. 7. Having regard to the facts and circumstances of the case, I find the claim of the complainant-O.P.No.2 by imputing criminal liability and denial of such imputation by the petitioner accused and arguments advanced on behalf of the parties, I observe that the complainant failed to make out a prima facie case for the alleged offence of cheating under Section 420 of the Indian Penal Code against the petitioner. The drafts were prepared in the name of two different pharmaceuticals firms and not in favour of the petitioner and the complainant failed to prove prima facie that the petitioner was the ultimate beneficiary of both the drafts which were prepared at the instance of Shri Amlendu Chatterjee, Proprietor of Maa Tara Pharmaceuticals, Deoghar and the medicines were supplied to him by Wipson Pharmaceuticals Pvt. Ltd., New Delhi and Baba Bashukinath Enterprises. I find substance in the argument that a person without any drug licence cannot deal in medicines as such, agency of medicine cannot be given. I find substance in the argument that a person without any drug licence cannot deal in medicines as such, agency of medicine cannot be given. The learned Counsel appearing for the complainant-Opposite Party No.2 failed to satisfy that the complainant had fulfilled all the requirements for obtaining an agency of medicines by showing Jharkhand Sales Tax number and Central Sales Tax number as also required licence under Drugs and Cosmetic Act, 1940. 8. In the facts and circumstances, I find that the criminal prosecution of the petitioner would tantamount to miscarriage of justice, accordingly, the entire criminal proceeding of the petitioner arising out of P.C.R.No.509 of 2007 pending before the S.D.J.M. including the order impugned dated 20.01.2009 by which a prima facie offence under Section 402 of the Indian Penal Code was found against him and summons was directed to be issued against him are quashed. 9. This petition is allowed.