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2013 DIGILAW 17 (JHR)

Reyazur Rahman v. State of Jharkhand

2013-01-03

H.C.MISHRA

body2013
ORDER 1. Heard learned counsel for the petitioner and learned counsel for the State as also learned counsel for the complainant-O.P. No.2. 2. Petitioner is aggrieved by the order dated 20.5.2009 passed by Sri V.K. Srivastava, learned Judicial Magistrate, 1st Class, Jamshedpur, in C-1 Case No. 583 of 2006, whereby the application filed by the petitioner for discharge under Section 245 of the Cr.P.C., has been dismissed by the Court below finding that there are sufficient materials on record for framing the charge under Section 420 of the IPC and under Section 138 of the Negotiable Instruments Act against the accused petitioner. 3. The facts of the case lie in short compass. The complainant A.P. No. 2 filed the complaint petition before the Chief Judicial Magistrate, Jamshedpur, which was registered as C-1 Case No. 583 of 2006, with the allegation that the accused had taken a friendly loan of Rs. 70,000/from the complainant on 15.2.2004 and had executed a promissory note in the proof of the same. The amount was not being returned by the accused and ultimately, after about two years, the accused issued a cheque for Rs. 70,000/- in favour of the complainant being the cheque No. 685714 dated 11.2.2006 drawn on Singhbhum Kshetriya Gramin Bank, Pardih Branch, Jamshedpur. The said cheque was presented in the Bank by the Complainant and the same was returned to the complainant unpaid with the remark on the cheque memo "Account closed". The cheque return memo was handed over to the complainant on 25.2.2006. Thereafter, the complainant gave a legal notice to the accused through the registered post with AID on 3.3.2006 and the said notice was returned undelivered with the endorsement of the postal peon, "No such person live on this address hence returned to sender". Again a notice was sent to the petitioner on his permanent address, which was also returned. It is the case of the complainant that the accused was also informed personally but he refused to return the money and the complainant had learnt that the accused had already closed the bank account on 29.8.2005 itself and knowing the same full well, the cheque was issued to the complainant on 11.2.2006 and accordingly, the complainant claimed that the offence is made out against the petitioner under Sections 406 and 420 of the IPC as well as under Section 138 of the N.I., Act. The complaint petition was filed on 5.5.2006. 4. It appears that after finding the prima facie case against the petitioner upon enquiry, four witnesses were examined before charge by the complainant. The petitioner, thereafter filed his application under Section 245 of the Cr. P.C., for discharge, which was dismissed by the Court below finding that there are sufficient materials on record for framing the charge against the petitioner for the offences under Sections 420 of the IPC and under Section 138 of the N.I. Act. 5. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, in-as-much as, admittedly the notice was given by the complainant to the petitioner on 3.3.2006 and thereafter the complaint petition was filed on 5.5.2006. Learned counsel accordingly, submitted that the complaint petition, so far it related for the offence under Section 138 of the N.I. Act, is clearly time barred and the petitioner ought to have been discharged for the said offence. So far as Section 420 of the IPC is concerned, learned counsel has submitted that it is settled principal of law that when the offence is not made out under Section 138 of the N.I. Act, there is no scope for the offence under Section 420 of the IPC. Learned counsel has place reliance upon placitum (C) in the decision of the Patna High Court in Lakshmi Kant vs. State of Bihar and Anr., reported in [2007(1) East. Cr.C. 112 (Pat.)] [: 2006(4) PLJR 350 ], which reads as follows :- “(C) Penal Code, 1860-Section 420-Case initiated under Negotiable Instruments Act-A complete Code in it-self-No scope for provision of IPC - Section 420, IPC attracted only against proof of dishonest intention and cheating-No such evidence produced-Section 420 not applicable. [Para 5]" Paragraph 5 of the said judgment reads as follows:- "5. It is next submitted that in any event the value of the dishonoured instrument being Rs. 15,000/- would have already been paid subsequently to the complainant. Learned counsel submits that by virtue of Section 147 of the Amendment Act of Negotiable Instrument Amendment and Miscellaneous Provisions Act, 2002 the offence would now have been made compoundable, He lastly submits that in a prosecution initiated under Section 138 of the N.I. Act there would not be any essence of applicability of the provisions of Section 420 of the Penal Code. The complaint would not allege any dishonest intention to cheat at the inception when the cheque would have been served. It is submitted that in the facts and circumstances of the case, the petitioner would also in the fact have tendered the entire value of the dishonoured instrument and hence there would be no applicability of Section 420 of the Penal Code. He placed reliance for the purpose upon a judgment of the Karnataka High Court reported in 2002 OCR (Dishonour of Cheque Reporter) 18 Nemichand Swarupchand Shaha vs. M/s T.H. Raibhagi Firm." 6. From the plain reading of paragraph 5 of the said judgment it is apparent that the entire paragraph is only the submissions of the learned counsel. No law whatever has been laid in this paragraph. There is neither any ratio nor even any obiter in this paragraph. Still the Law Journal has made out a placitum only out of the submissions of the learned counsel. Least said the better. 7. Finding of the Court is recorded in paragraph 8 of the judgment, which reads as follows:- "8. This Court would also record that in view of the given nature of the allegations and subsequent payment made by the petitioner, the allegations under Section 420 of the Penal Code appear to be inapplicable and ornamental in nature. II Thus, it is apparent that in the facts and circumstances of the said case, the Patna High Court found that the offence under Section 420 of the IPC was not made out against the petitioner in the said case as the payment had already been made by the petitioner. We have to examine, whether in the facts of the present case the offence is made out under Section 420 of the IPC against the petitioner or not. 8. Learned counsel for the Complainant-O.P. No. 2 on the other hand has submitted that on the basis of the allegations made in the complaint petition and on the basis of the materials brought on record, the offence is clearly made out against the petitioner for both the offences, under Section 420 of the IPC as also under Section 138 of the N.I. Act. It has been submitted by the learned counsel for the petitioner that so far as Section 420 IPC is concerned, the petitioner had issued cheque knowing full well that account had already been closed by him, which fact has also been established by the statement of the witnesses examined by the complainant in the Court below. At this stage, it cannot be said that the petitioner was not having the intention to defraud at the initial stage, in-as-much as, it is the case of the complainant that even after receiving of the money, the petitioner was not paying back the money to the complainant, rather after a lot of persuasion, the cheque was issued after about two years, and that too, after the account was already closed by the petitioner. Learned counsel placed reliance upon the decision to the Supreme Court of India in Sangeetaben Mahendrabhai Patel vs. State of Gujarat and Another, reported in (2012)7 SCC 621 [: 2012(2) JLJR (SC)392], wherein it has been held that in the given case, the offence under Section 420 of the IPC as well as under Section 138 of the N.I. Act can be maintainable, as even though there are overlapping of the facts in both the cases, but ingredients of both the offences are entirely different. 9. It has also been submitted by the learned counsel for the O.P. No.2 that the complaint petition filed under Section 138 of the N.I. Act is not at all barred by limitation, in-as-much as, the first notice was issued to the petitioner on 3.3.2006 and when the same was returned unserved, another notice was issued to the petitioner on his permanent address on 23.3.2006, which was proved and marked as Exhibit in the Court below. It has been submitted that on the same address, the petitioner is residing, which shall be evident from the fact that the petitioner has filed this present criminal revision giving the same address. Learned counsel accordingly, submitted that thereafter the complaint petition is well within time and accordingly, it cannot be said that the same was time barred. Learned counsel accordingly, submitted that there is no illegality in the impugned order worth interference in the revisional jurisdiction. 10. Learned counsel accordingly, submitted that thereafter the complaint petition is well within time and accordingly, it cannot be said that the same was time barred. Learned counsel accordingly, submitted that there is no illegality in the impugned order worth interference in the revisional jurisdiction. 10. After having heard learned counsel for both the sides and upon going through the record, I find that fact remains in that in the present case the cheque was issued by the petitioner in spite of the fact that he had already closed his account. The facts of the case are quite different from the fact in the case of lakshmi Kant's case (supra) relied upon by the learned counsel for the petitioner, in-as-much as in the said case the payment had already been made by the accused. The facts of this case is that though the loan was taken by the petitioner in the year 2004, the same was not returned back even after persuasions, and ultimately, the cheque was issued in the year 2006 knowing full well that the account had already been closed in the year 2005 itself. As such, it cannot be said at this stage that the petitioner was not having the intention to defraud at the very inception. Similarly, I also found that the first notice was returned back with the endorsement that the petitioner was not living on the said address, and thereafter the second notice was issued to the petitioner on his permanent address, which is the same address, which has been mentioned in this revision application by the petitioner himself and accordingly, at this stage it cannot be said that the complaint petition filed by the petitioner is time barred. 11. Accordingly, I do not find any illegality and/or irregularity in the impugned order passed by the Court below finding sufficient materials on record for framing charge under Section 420 of the IPC as also under Section 138 of the N.I. Act. There is no merit in this revision application and the same is accordingly, dismissed. Let the LCR be sent back forthwith.