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2012 DIGILAW 537 (MP)

Durgesh Chourasia v. Shiv Kumar Tiwari

2012-05-15

N.K.GUPTA

body2012
JUDGMENT : N.K. Gupta, J.:- All the four petitions are prosecuted against the common order dated 27.6.2011 passed by Sessions Judge, Satna in criminal cases No. 90/2011, 91/2011, 92/2011, 93/2011 and all the matters are connected with same parties and common question of law is involved in all the petitions, therefore, all the petitions are hereby disposed off with a common order. 2. The petitioner has preferred four petitions against the order dated 27.6.201 1 passed by Sessions Judge, Satna in criminal revisions No. 90/201 1, 91/2011, 92/2011 and 93/2011, by which revision applications were dismissed, which were filed against the orders passed by learned JMFC, Satna (Shri Vivek Patel) in criminal cases No. 393/2009, 394/2009, 395/2009 and 396/2009, by which applications under section 204 of the Cr. P.C. filed by the petitioner were dismissed. The petitioner has also challenged the orders passed by learned JMFC in aforesaid cases. 3. The brief facts relating to the present matter are that the respondents/complainants have lodged four different complaints under section 138 of Negotiable Instruments Act, 1981 (In short 'NI Act') on the basis that cheques issued by the petitioner were dishonoured. The petitioner has filed an application under section 204 of the Cr.P.C. on the ground that cheques were taken by the complainants in a forceful manner and therefore, cheques were issued due to undue coercion. Cheques are forged and therefore, complaints were not maintainable. Learned JMFC vide order dated 24.2.2011 dismissed the applications. The petitioner challenged each order passed by learned JMFC before Sessions Judge, Satna by way of a revision but, vide order dated 27.6.2011, learned Sessions Judge dismissed all the four revisions filed by The petitioner. 4. Heard the learned counsel for the parties in detail. 5. Learned counsel for the petitioner has raised the objection mainly on the ground that cheques were issued for security purpose of the debt and by dishonouring of such cheques, no complaint under section 138 of NI Act may be prosecuted and therefore, it is prayed that all the four complaints may be quashed. Learned counsel for the petitioner placed his reliance on the order passed by this Court in case of "Jitendra Singh Flora Vs. Ravikant Talwar" [(2001) M.P.L.J. 229] and to the order passed by Rajasthan High Court in Case of "Rahul Bhatia Vs. State of Rajasthan and another" [(II) (2002) Banking Cases Page 412]. Learned counsel for the petitioner placed his reliance on the order passed by this Court in case of "Jitendra Singh Flora Vs. Ravikant Talwar" [(2001) M.P.L.J. 229] and to the order passed by Rajasthan High Court in Case of "Rahul Bhatia Vs. State of Rajasthan and another" [(II) (2002) Banking Cases Page 412]. Learned counsel for the petitioner also submitted that it is for the complainant to move a civil suit for recovery of money and since the complainants are money lenders, they cannot recover their money without their registration as money lender. Under such circumstances, the complainants cannot prosecute the criminal complaints against the petitioner. Learned counsel for the petitioner has also placed his argument to the point that debt was dependant upon the pronote which is not actually a pronote but, it was a bond and therefore, without any sufficient stamp duty, the respondents cannot prosecute any legal proceeding against the petitioner. In support this contention, learned counsel for the petitioner has relied upon the order passed by Nagpur High Court in case of "D. Rozario Vs. Hariballabh Onkarjee Trivedi" [AIR (1927) Nagpur 195] and order passed by this Court in case of "Rajkishore Pandey Vs. Cyan Chandra Jain" [(2010) (3) M.P.H.T. 522 (DB)]. 6. Learned counsel for the respondents has submitted that the petitioner did not raise any of such ground in application filed before the trial Court under section 204 of the Cr.P.C. In that application different grounds were taken. The petitioner is enjoying stay in the case since the year 2009 without any sufficient cause. Objections raised by the petitioner are based on factual position and therefore, without leading evidence in the case, such objections cannot be decided. However, it is submitted that cheques were not given for the purpose of security but, cheques were given for the payment of debt. Similarly, pronotes submitted by the complainants are not under question. Criminal complaints are lodged because cheques issued by the petitioner were dishonoured and therefore, pronotes are submitted only for the purpose that loan was given to the petitioner and therefore, there is no necessity to prove these pronotes exactly. These pronotes can be read for collateral purpose without payment of stamp duty, if they are treated as a bond. However, these pronotes are not bonds and these are not documents which are questioned in the present proceedings. These pronotes can be read for collateral purpose without payment of stamp duty, if they are treated as a bond. However, these pronotes are not bonds and these are not documents which are questioned in the present proceedings. Objection of money lending cannot be raised in the present criminal complaints and if it could be raised then, it depends upon the factual position and without its proof, allegation relating to Money Lenders Act against the complainants cannot be presumed and therefore, objection under Money Lenders Act cannot be considered at this stage. Cheques were given for payment of debt and therefore, complaints under section 138 of NI Act are maintainable. Petitions filed by the petitioner may be dismissed with heavy cost. 7. As far as the documents which are submitted with the complaints under the head of 'Pronote' are concerned, at present, it is not required to discuss the matter on the merits because pronotes are not essential documents in the present complaints. Complaints are submitted under section 138 of NI Act, therefore, the document which is relevant before the trial Court is a cheque issued by the petitioner and if the complainants desire to prove that loan was granted to the petitioner and pronote was executed then, pronote may be used for collateral purpose and not for recovery of money. Under such circumstances, it is not necessary for the criminal Court to consider as to whether that document is a pronote or it is a bond and also that whether it is sufficiently stamped or not. Under such circumstances, it is not necessary to decide this issue at this stage. Learned counsel for the respondent has placed his reliance on judgment of Hon'ble the Apex Court in case of "D. Purshotama Reddy and another Vs. K. Sateesh", [(2008) (8) SCC SOS], in which it is held that if two proceedings are possible then, parties cannot be barred to prosecute a criminal proceeding, if a civil proceeding is maintainable. In the light of aforesaid judgment, it is apparent that the complainants have an opportunity to prosecute a civil suit for recovery of money on the basis of these pronotes and therefore, it would be apparent for the Civil Court to consider this issue as to whether document is a pronote or a bond. In the light of aforesaid judgment, it is apparent that the complainants have an opportunity to prosecute a civil suit for recovery of money on the basis of these pronotes and therefore, it would be apparent for the Civil Court to consider this issue as to whether document is a pronote or a bond. Under such circumstances, if this matter is decided here without any necessity then, it will cause prejudice to the Civil Court unnecessarily. Under such circumstances, it is apparent that at present where matter is not dependant upon the pronote, there is no need to the Criminal Court to decide this matter. At present, pronote may be read as a document for collateral purpose and therefore, its admissibility cannot be questioned in present complaints. 8. As far as objection raised relating to money lender is concerned, it is dependant upon the factual aspect. There are two complainants who gave some loan to the petitioner only. There is no document shown by the petitioner that the complainants have given loans to so many persons and therefore, at present there is no basis by which it can be observed that the respondents are money lenders. Such objection cannot be raised in such a manner. It is for the petitioner to produce the evidence relating to this question before the trial Court and such objection can be raised at the stage of final argument. Therefore, by such objection, those complaint cases cannot be quashed at this stage. 9. Main objection of the petitioner is that the cheques were given for the security of debt and learned counsel for the petitioner placed his reliance upon orders of this Court as well as of Rajasthan High Court but, this question also depends upon the factual position of the case. Prima facie, it cannot be said that cheques were issued for security purpose. If language of the document is examined then, it would be clear that prima facie money was lent to the petitioner with some conditions. Looking to the document, money was to be paid on demand and thereafter, cheques were issued. Cheques were post-dated and dates were mentioned of October, 2008. If both the documents are read simultaneously then, it would be apparent that amount lent was to be returned on demand and simultaneously a demand was made that amount is to be returned in October, 2008. Cheques were post-dated and dates were mentioned of October, 2008. If both the documents are read simultaneously then, it would be apparent that amount lent was to be returned on demand and simultaneously a demand was made that amount is to be returned in October, 2008. Under such circumstances, prima facie it appears that issued cheques were not given for the security of the loan but, post-dated cheques were given for payment of money in October, 2008. Under such circumstances, orders relied upon by learned counsel for the petitioner are not relevant in the present case because prima facie cheques were not given for security purpose but, cheques were given for payment of money lent to the petitioner. 10. On the basis of the aforesaid discussion, it would be clear that petitioner has issued four cheques to the respondents for repayment of loan and those cheques were dishonoured. The respondents have filed various complaints under section 138 of NI Act. The petitioner could not establish any of the ground by which it can be said that the complaints are not tenable and therefore, there is no ground by which these complaints can be quashed. It is strange that an application under section 204 of the Cr. P.C. was filed before the trial Court, in which no such ground was raised, which is raised before the revisionary Court and this Court. Learned Sessions Judge has rightly dismissed all the revision applications by detailed order. Under such circumstances, it would be apparent that objections filed by the petitioner were devoid of merits. The petitioner caused delay of there years in each of the complaint case without any substance and therefore, it would be proper to impose the expenditure of the respondents upon the petitioner, incurred in defending present petitions. Consequently, all the four petitions are hereby dismissed with cost. The petitioner will bear the cost of himself as well as cost of the respondents relating to these four petitions. Cost of each petition be added @ Rs. 5,000/- per petition for the respondents. 11. Copy of the order be sent to the trial Court for information and to proceed further, in those complaint cases forthwith.