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2015 DIGILAW 207 (JHR)

Rakesh Kumar v. State of Jharkhand

2015-02-06

RONGON MUKHOPADHYAY

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JUDGMENT :- Rongon Mukhopadhyay, J. Heard the learned counsel appearing on behalf of the petitioner and the learned counsel for the State. No one appears on behalf of the opposite party No. 2. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with C/1 Case No. 832 of 2000 including the order dated 19.12.2000 passed by the learned Judicial Magistrate, Jamshedpur, whereby and whereunder, cognizance has been taken for the offence punishable u/s 420/406 of the Indian Penal Code (IPC) as also u/s 138 of the Negotiable Instrument Act (N.I. Act). 3. A complaint case had been instituted by the opposite party No. 2 herein in which it was stated that the petitioner who was known to the complainant, introduced him with the accused No. 2 and the petitioner had stated that he would supply a mobile phone and the money for which would be arranged by M/s. Trade Well Finance Company Limited and the complainant had to make payment in installments. It has been further alleged that the complainant handed over blank cheques to the accused No. 2 and the petitioner had encashed the said blank cheques, handed over by the complainant and misappropriated the money and when the complainant approached the petitioner, he handed over only a cheque of Rs. 8,500/- to the complainant which was dishonoured. 4. After initiation of the complaint case, an enquiry was conducted u/s 202 of the Code of Criminal Procedure (Cr. P.C.) by examining the complainant on solemn affirmation as also his witnesses and pursuant thereto vide order dated 19.12.2000, the learned Judicial Magistrate, Jamshedpur was pleased to take cognizance for the offence punishable u/s 420/406 of the Indian Penal Code (IPC) as also u/s 138 of the Negotiable Instrument Act (N.I. Act). 5. The learned counsel for the petitioner has submitted that the allegations made in the complaint petition are false and concocted inasmuch as it was the complainant/ opposite party No. 2 who had approached the company for getting sanctioned a loan of Rs. 11,000/- and after the loan was sanctioned cheques amounting to Rs. 11,000/-was handed over to the complainant/ opposite party No. 2. He has further submitted that the opposite party No. 2 had issued cheques dated 24.3.1998 and 21.8.1999 for an amount of Rs. 6,490/- and Rs. 11,000/- and after the loan was sanctioned cheques amounting to Rs. 11,000/-was handed over to the complainant/ opposite party No. 2. He has further submitted that the opposite party No. 2 had issued cheques dated 24.3.1998 and 21.8.1999 for an amount of Rs. 6,490/- and Rs. 6,000/- in favour of the finance company but the same were dishonoured and when the opposite party No. 2 was confronted, he had made assurance to make payment. Ultimately when the entire amount with interest accumulated to the tune of Rs. 25,127/-, the opposite party No. 2 issued a cheque bearing No. 1080660 on 17.10.2000 in full liquidation of the amount payable to the finance company, which however was dishonoured again. He further submits that since inspite of a legal notice, the opposite party No. 2 failed to make payment, a complaint case was instituted against him being Complaint Case No. 1099 of 2000 on 1.12.2000. He also submits that in the complaint petition, filed by the opposite party No. 2, there is no mention about the date on which notice was given to the petitioner before instituting the complaint case. He, therefore, submits that the same is in violation of the provisions of Section 138 of the N.I. Act and as such the criminal proceedings against the petitioner is liable to be quashed. 6. The learned counsel for the State on the other hand has submitted that the complaint petition itself reveals that two cheques, given by the petitioners, were dishonoured and the petitioner cannot take advantage of the fact he had instituted a case against the complainant/ opposite party No. 2 u/s 420/406 I.P.C. and Section 138 of the N.I. Act. 7. After hearing the learned counsel for the parties and after going through the records, I find that the complaint case bearing C/1 Case No. 832/2000, in which the petitioner has been arrayed as an accused No. 3, was filed on 15.9.2000 and in which there is specific allegation against the petitioner of issuance of cheques bearing No. SKH 0107326 and 0107336 dated 26.6.2000 and 9.8.2000 respectively and on being presented to the bank, both the cheques were dishonoured on 14.8.2000. It has been stated in the complaint petition that a legal notice was served upon the petitioner and on non-payment of the dishnoured amount, the complaint had been instituted. It has been stated in the complaint petition that a legal notice was served upon the petitioner and on non-payment of the dishnoured amount, the complaint had been instituted. The complaint petition further reveals that it was the petitioner who had obtained Rs. 11,000/- from the accused No. 1 i.e. Trade Well Finance Ltd, Jamshedpur on the basis of the three blank cheques given by the complainant, opposite party No. 2 herein, which speaks about the criminal intent of the petitioner in cheating the complainant. 8. Moreover on 1.12.2000 a complaint case was lodged by M/s. Trade Well Finance Ltd., Jamshedpur against the complainant/ opposite party No. 2 of the present case and although it has been stated by the petitioner that on dishonour of the cheque it was the petitioner who had given a legal notice to the complainant/ opposite party No. 2 and on non-payment, had filed a complaint case, but it appears that in the Complaint Case No. 1099 of 2000, neither the petitioner was complainant nor was the petitioner arrayed as a witness of the complainant. Even in the said complaint petition, there is no whisper with respect to the role of the petitioner as has been claimed by him. Even otherwise the stand, which has been taken by the petitioner, in the facts and circumstance of the case, can be best agitated at the time of trial. 9. The powers u/s 482 of the Code of Criminal Procedure has to be exercised sparingly and with a great deal of circumspection. The complaint petition does make out a criminal offence against the petitioner and at this juncture, there is no cause to interfere in the criminal proceedings. 10. In view of the discussions made herein above, I find no merit in this application. This application is accordingly dismissed.