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2013 DIGILAW 224 (JHR)

Binod Shankar v. State of Jharkhand

2013-02-12

R.R.PRASAD

body2013
ORDER 1. Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party no.2 and also learned counsel appearing for the State. 2. This application has been filed for quashing of the order dated 10.2.2012 passed by the then Judicial Magistrate, 1st class, Deoghar in P.C.R case no.240 of 2011 whereby and whereunder cognizance of the offences punishable under sections 323, 379, 504 of the Indian Penal Code has been taken. 3. Before adverting to the submission advanced on behalf of the parties, the case of the complainant needs to be taken notice of. 4. It is the case of the complainant that the petitioner, proprietor of M/s. Rishi Enterprises a consignee agent of M/s Nelson Food Products Company Limited entered into a go-down of the complainant and ordered his two associates to take all the cartoons containing toffees which they had supplied to the complainant for sale in the market through his distributor and agent. Meanwhile, the complainant reached over there. As soon as he reached over there, the petitioner caught hold of his collar and started assaulting with fists and slaps. The complainant tried to pacify him but the petitioner instead of being composed became so furious that he created havoc over there. 5. Further it has been alleged that the petitioner snatched away the golden chain from the neck of the complainant and then got the cartoon containing toffee scattered by kicking it. 6. On such allegation, cognizance of the offence punishable under Sections 323, 379 and 504 of the Indian Penal Code was taken vide order dated 10.2.2012 which is under challenge. 7. Learned Sr. counsel appearing for the petitioner submits that the instant prosecution has been lodged maliciously for the reason that the petitioner, proprietor of M/s. Rishi Enterprises a consignee agent of M/s. Nelson Food Products Company Limited had supplied toffee to the petitioner for which a cheque of Rs.51,000/- had been given in the name of the petitioner. On deposit of the said cheque, it got dishonoured and thereafter a notice was given to the complainant calling upon him to make payment but when the payment was not made, a complainant was lodged on 17.1.2011 in which summon was ordered to be issued on 3.2.2011. On deposit of the said cheque, it got dishonoured and thereafter a notice was given to the complainant calling upon him to make payment but when the payment was not made, a complainant was lodged on 17.1.2011 in which summon was ordered to be issued on 3.2.2011. Thereupon the complainant having come to know about the lodgment of the case under Section 138 of the Negotiable Instrument Act has filed this complaint on 19.4.2011 with an ulterior motive and thereby the order taking cognizance is fit to be quashed in view of the decision rendered in a case of State of Haryana and others vs. Bhajan Lal and others [1992 Supp (1) SCC 335]. 8. As against this, learned counsel appearing for the opposite party no.2 submits that the case in which cognizance has been taken against the petitioner has nothing to do with the case lodged under Section 138 of the Negotiable Instrument Act by the petitioner against the complainant, rather the case was lodged when altogether different cause of action accrued when the petitioner by entering into go-down of this petitioner not only assaulted the complainant but also snatched golden chain and thereby every ingredients are there in the complaint for constituting offences under which cognizance has been taken and in such situation, any plea being taken by the petitioner of case being lodged malafidely will have no bearing. In support of his submission a decision rendered in a case of Renu Kumari vs. Sanjay Kumar and others [ (2008)12 SCC 346 ] was referred to. 9. Further it was submitted that where a complaint does constitute offence of which cognizance has been taken, it never warrants to be quashed by the High Court in view of the decision rendered in a case of K. Ashoka vs. N.L. Chandrashekar and others [ (2009) 5 SCC 199 ]. Similar view has been taken by this Court in a case of Mahabir Singh vs. State of Jharkhand and others, (Cr.M.P.No.603 of 2011). 10. It is the case of the petitioner that when upon cheque given by the complainant got dishonoured, the petitioner upon fulfilling the formalities brought a case under Section 138 of the Negotiable Instrument Act against the complainant on 17.1.2011 in which summon was issued on 3.2.2011. Thereafter on 19.4.2011 this case in which the petitioner has been made accused was lodged. Thereafter on 19.4.2011 this case in which the petitioner has been made accused was lodged. It has also been the case of the petitioner that in a case lodged by the petitioner the complainant has even been convicted. 11. However, the stand which has been taken on behalf of the complainant that the complainant had had no knowledge of lodgment of the case under Section 138 of the Negotiable Instrument Act before the case was lodged by the complainant and in such event, whatever allegations have been made by the complainant, that can not be said to be actuated with malice. 12. It be recorded that the Hon'ble Supreme Court in a case of State of Haryana and others vs. Bhajan Lal and others (supra) has been pleased to lay down the categories of the cases by way of illustrations wherein extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 of the 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. One of such categories is as follows:- “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”. 13. As has been noticed above, a case was lodged by the petitioner for commission of offence under Section 138 of the Negotiable Instrument Act. Thereupon the complainant lodged a case on 19.4.2011 alleging therein about the commission of offence of theft and assault. 14. Under this situation, one can easily come to the conclusion that the complaint case has been lodged maliciously with ulterior motive for wreaking vengeance. In this situation, if the complaint case is allowed to be proceeded with, it would amount to abuse of the process of the court. 15. So far as the case of K.Ashoka vs.N.L.Chandrashekar and other (supra) is concerned, it be recorded that the Hon'ble Supreme Court has been pleased to hold that a criminal proceeding never warrants tobe quashed in exercise of power under Section 482 of the Code of Criminal Procedure if the allegations prima facie disclose commission of cognizable offence. That principle has been well settled. That principle has been well settled. However at the same time the Hon'ble Supreme Court in a case of State of Haryana and others vs. Bhajan Lal and others (supra) has been pleased to hold that where criminal proceeding is manifestly attended with mala fide, it can be quashed to secure ends of justice. Therefore, the case relied upon on behalf of the petitioner is not applicable in the facts and circumstances of this case. 16. Similarly, ratio laid down in a case of Renu Kumari vs. Sanjay Kumar and others (supra) is also not applicable where the Hon'ble Supreme Court in the facts of that case has been pleased to hold that the High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude which cannot be seen in their true perspective without sufficient material. 17. It has been further held in that case that when an information is lodged at the police station and an offence is registered, then the plea of mala fides levelled against the informant would have no consequence. It is the material collected during the investigation and evidence led in the court decide the fate of the accused person. 18. Thus, what has been held that the allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings reason being that the police does have occasion to find out the truth of allegation during investigation whereas this case arises out of a complaint when allegation made against the petitioner in the facts and circumstances appears to be actuated with malice for the reason stated above. 19. Under the circumstances, the order taking cognizance cannot be sustained and hence, it is hereby quashed. 20. In the result, this application stands allowed.