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2016 DIGILAW 298 (GAU)

Shyam Harlalka v. Deepak Jain and Anr.

2016-04-19

RUMI KUMARI PHUKAN

body2016
Rumi Kumari Phukan, J.:-- By the present petition under Section 482 of CrPC read with Article 227 of the Constitution of India, the petitioner prayed for quashing of Complain Case No.312(c)/12 pending in the court of JMFC, Dibrugarh under Section 420 IPC. 2. Case of the petitioner: The petitioner herein deals with electronic goods and other allied items, has business transaction with the opposite party, who also carried business in the name and style of Mahabir System having its shop at Dibrugarh, Assam and used to purchase electronic goods from the petitioner. In course of such business transaction and with a view to clear outstanding dues, the opposite party make payment of Rs.5,98,000/- through a cheque No.50329 dated 25.1.2012 drawn on Oriental Bank of Commerce, Dibrugarh to the petitioner. The said cheque was deposited by the petitioner for collection on 3.5.2012 but the same was dishonored on the ground of stop payment by the drawer. The petitioner thereafter sent legal notice as on 10.6.2012 to the opposite party demanding the said amount. But instead of making payment, he send a reply dated 2.6.2012 claiming adjustment of amount by making a false story though his counsel. Understanding the intention of the opposite party that he is not going to pay the dues, the petitioner herein lodged Complaint Case No. 1470(c)/2012 in the court of CJM, Kamrup against the opposite party u/s 138 of NI Act and the learned court after taking cognizance issued summon to the opposite party. But surprisingly instead of appearing in the aforesaid case, the opposite party lodged another complaint case No.312(c)/2012 against the petitioner in the court JMFC, Dibrugarh u/s 420 IPC alleging that the petitioner has misused the cheque which is the subject matter of the complaint case. In the aforesaid case, the learned Magistrate after taking congnizence u/s 420 IPC issued summon to the petitioner. 3. The aforesaid complaint case has been challenged by the petitioner by way of this petition on the grounds that the complaint case was filed by the opposite party deliberately just to avoid his appearance in the case so filed by the petitioner with false and frivolous grounds. Further it is contended that the cognizance so taken by the learned Magistrate u/s 420 IPC is not maintainable, as it is not disputed that the cheque was given by the opposite party in discharge of his business liability. Further it is contended that the cognizance so taken by the learned Magistrate u/s 420 IPC is not maintainable, as it is not disputed that the cheque was given by the opposite party in discharge of his business liability. Thirdly, the opposite party could have raise his grievance in the complaint case filed by the petitioner u/s 138 of NI Act. Thus, it has been submitted that the subsequent case so filed by the opposite party who is the accused in the aforesaid case, and the cognizance taken by the learned Magistrate is nothing but abuse of process of law and the same is liable to be quashed. 4. Case of the respondents: According to the respondents, they issued only blank cheque (disputed cheque) as security purpose only. But the petitioner has shown the outstanding amount by exaggerating his books of accounts. It contends, the opposite party is not liable to pay the interest amount of Rs.2,00,983/-, which included in cheque, however, he is ready to settle the amount at Rs.3 Lacs as against the said cheque amount. The opposite party was stated to be compelled to advice his banker to stop payment of the aforesaid cheque amount due to above aspects. Same was replied in the legal notice as well as the complaint petition filed by the respondent that they have raised certain issue as against the said cheque amount about wrongful assessment in the books of accounts and about payment of interest. 5. Heard Mr. S.K. Agarwal, learned counsel for the petitioner. And Mr. A. Goyal, the learned counsel for the respondent and also gone through the documents as well as complaints filed in both the cases. 6. In the both the cases there is no denial of issuance of cheque by the opposite party to the petitioner and the petitioner herein in due manner deposited the aforesaid cheque to the concerned Bank for collection which was, however, dishonoured for the reasons mentioned above. The rest of the facts are in dispute. According to the petitioner, in the aforesaid cheque amount was due to them in course of business transaction but refuting to aforesaid claim of the petitioner, respondent claimed adjustment of interest. 7. The rest of the facts are in dispute. According to the petitioner, in the aforesaid cheque amount was due to them in course of business transaction but refuting to aforesaid claim of the petitioner, respondent claimed adjustment of interest. 7. Having regard to the contention so raised by the both the parties and the matters on record, it is apparent that subject matter of dispute in both the cases as well as the cause of action are same and more particularly the issuance of cheque by the opposite party is not at all disputed. Though liability denied, the petitioner herein has duly proceeded with the matter in hand as per the statutory requirement under NI Act. The petitioner deposited the aforesaid cheque which was admittedly issued by the opposite party and on being dishonored the petitioner after serving the legal notice upon the opposite party has finally lodged the complaint u/s 138 of NI Act. 8. From the complaint case so filed by the respondent, it can be seen that he also agreeable to the payment of said cheque amount subject to the deduction of interest amount which is according to them is wrongly assessed. By placing the evidence of the petitioner on record in the aforesaid complaint case u/s 138 NI Act, respondent has tried to dispute certain aspects of the matter that the statement of account prepared by the petitioner is incorrect and the same is liable to be adjusted against the cheque amount. Another two contentions of the opposite party is that he is agreeable to such settlement of dispute and payment of the cheque amount subject to verification of books of account. In view of such admitted position, the element of offence of cheating from very beginning is lacking. The opposite party, however, made no any averment as to why he refrain himself to defend the case of the petitioner so filed under section 138 NI Act. 9. The learned counsel for the petitioner relied upon the cases reported in (2008) 16 SCC 763 (Eicher Tractor Ltd. v. Harihar Singh), (2009) 9 SCC 682 (M.N. Ojha and others v. Alok Kumar Srivastav). 10. In the aforesaid Eichar Tractor (supra), the Hon'ble Supreme Court has discussed the factual aspect of the matter of the said case which is quite similar to the present case in hand. 10. In the aforesaid Eichar Tractor (supra), the Hon'ble Supreme Court has discussed the factual aspect of the matter of the said case which is quite similar to the present case in hand. In the aforesaid case also, respondent issued the cheque of Rs.50 Lacs towards discharging his liability and debt to the appellant and accordingly it was deposited in the Bank and as the cheque was dishonoured, so the appellant after serving the legal notice upon the respondent, demanding the money, which was not responded by the respondent, so the appellant lodged a complaint under Section 138 of NI Act. Though the respondent appeared in the said case, but subsequently, the respondent filed a complaint before the Magistrate on the allegation that the appellant had stolen away the said cheque and has forged the aforesaid cheque and on the basis of which, the learned Magistrate took cognizance of the offence under Section 420/468/471 of IPC. As against the said complaint case, the appellant, who was the complainant in the NI case, preferred the petition for quashing the same, which is stated to be abuse of process of law. 11. While appreciating such aspect, the Hon'ble Supreme Court had observed in the aforesaid decision that, while exercising the power under Section 482 CrPC, the court does not function as a court of appeal or revision. It is to be exercised as ex debito justitiae to do real and substantial justice for the administration of which alone court exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When exercising jurisdiction u/s 482 of CrPC, High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. This is the function of the trial judge. Judicial process no doubt, should not be an instrument of oppression or needless harassment. When exercising jurisdiction u/s 482 of CrPC, High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. This is the function of the trial judge. Judicial process no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. 12. In such backdrop of the case, it has been held that the case squarely falls under the parameters of State of Haryana & others v. Bhajanlal & others reported in 1992 Supp (1) SCC 335 (parameter -7). 13. In M.N. Ojha (supra), there is a discussion about the motivated proceedings. The factual matrix in the aforesaid case has a parity with the matter in hand. In the said case, the respondent stood as a guarantor to the loan amount sanctioned to the property of concern firm a person and also deposited fixed deposit receipts parallel to loan amount. But, subsequently as the borrower became irregular to the loan so the bank authority, in terms of the loan agreement, adjusted some loan amount from the FDR furnished by the guarantor as securities against of the borrower with intimation to the borrower as well as guarantors, so that the loan amount should be regularized. There being no response, the bank authority lodged an FIR before police station against the borrower and guarantors for cheating and misappropriation. During pendency of the said proceeding, the said guarantor lodged a complaint case before the court of SDJM, Patna, and accordingly learned Magistrate took cognizance of the offence u/s 409/422/426/120(B) of IPC. Challenging the said proceeding before the learned Magistrate, the Bank officials preferred a petition u/s 482 of CrPC before the High Court, which, however, not considered by the High Court. Challenging the said proceeding before the learned Magistrate, the Bank officials preferred a petition u/s 482 of CrPC before the High Court, which, however, not considered by the High Court. Therefore, the appellant preferred an appeal before the Hon'ble Apex Court and then the Supreme Court has set aside the order of the High Court and has held that this is a classic example of non-application of mind and held that bank authorities merely discharging their duties to realise and recover the amounts due to the bank from the borrower as well as guarantors. The complainant obviously has filed the case as a counter blast to the said proceeding already initiated by the bank against the borrower and guarantor. It is further held that sequence of events undoubtedly suggests that the criminal proceeding have been maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge. It was clearly intended to prevent the public servants to discharging their duties. The criminal law was set in to motion, by the learned SDJM on mere asking to do so by the complainant. 14. The learned counsel for the opposite party in the other hand has advanced his submissions that even in view of pendency of complaint case u/s 138 NI Act, the subsequent complaint filed by the opposite party is maintainable as the petitioner has manipulated statement of account with a view to claim undue amount showing interest as against the actual amount and as such there is an element of cheating for which the Court has rightly taken cognizance after recording evidence of the opposite party. 15. In support of his contention that there is no wrong in filing such complaint respondent also relied on the decisions reported in 1992 Supp (1) SCC 335 (State of Haryana & others v. Bhajanlal & others), 2014 (16) SCC 711 (Sesami Chemicals Pvt. Ltd. v. Sate of Meghalaya), 2008(13) SCC 678 (Suryalakshmi Cotton Mills. Ltd. v. Rajvir Industries Ltd. & others), 2010 (6) GLR 702 (Pawan Anand v. Banajyoti Nath). 16. On the basis of above, it has been contended that present case is not covered as has been contended by the learned counsel for the petitioner as that of Bhajanlal's case (parameter 7). Ltd. v. Rajvir Industries Ltd. & others), 2010 (6) GLR 702 (Pawan Anand v. Banajyoti Nath). 16. On the basis of above, it has been contended that present case is not covered as has been contended by the learned counsel for the petitioner as that of Bhajanlal's case (parameter 7). It sought to impress that on the basis of materials available on record, it can be said that the complaint case filed by the opposite party was maliciously instituted. 17. I have considered submissions of learned counsel for the parties and the decision so relied upon by them. It is to be noted that though in certain cases, subsequent complaint case can be allowed to be continued on the basis of subsequent facts situation and the learned court can consider about such continuation of such criminal proceeding instituted u/s 138 NI Act even though a proceeding u/s 420 IPC was initiated and pending. 18. In Pawan Anand (supra) it has been held that if the dishonor of cheque on the ground of non-available of funds in the account of the person, who issues the cheque and when such a person does not, within the prescribed period of receiving notice as provided u/s 138 of NI Act, make payment of the amount, due under the cheque, to the payee, he exposes himself to prosecution. Merely because of the fact that an investigation is pending in a case of cheating lodged against the petitioner involving the said cheque, his subsequent prosecution u/s 138 NI Act, cannot not said to be bad or impressible in law. 19. In all the above cases referred by the respondent, it has a reference to a situation which is different to facts situation with the matter in hand. In above referred case complaint has been lodged by the same person against the same respondent under different offences. But, in the instant matter in hand is quite different where the respondent (who has been made an accused) has instead of rebutting the case of complainant/petitioner has lodged different case on the same admitted document on same cause of action. So the matter is required to be dealt with accordingly. But, in the instant matter in hand is quite different where the respondent (who has been made an accused) has instead of rebutting the case of complainant/petitioner has lodged different case on the same admitted document on same cause of action. So the matter is required to be dealt with accordingly. As we find, the petitioner herein lodged the complaint case u/s 138 NI Act claiming the cheque amount from the opposite party as per the due procedure and the respondent who admitted about of issuance of such cheque (however stated to be issued as a security purpose) and also raised objection about certain amounts in books of accounts etc. and lodged the case under Section 420 IPC. The respondent was however, at liberty to raise such defence in the NI Act case to rebut the case of the complainant that the said cheque was issued not against any liability but as a security purpose and also all other pleas regarding maintenance of books of accounts etc. Such an approach by the respondent, with a view to defeat the claim of the petitioner is not legally as well as factually permissible. Until and unless, the respondent disprove the case of the petitioner as regards due drawn of the cheque in question, the respondent would be not in a position to proof his case in the complaint case so filed by him. 20. All these speak about abuse of process of law. The conduct of the respondent itself not appeared justified. At one time, he stated that he issued the cheque for security purpose and other time it is stated that he is agreeable to pay amount of Rs,.3,00,000/- against the cheque amount. All these matters being disputed one is to be assessed by the court in the complain case filed by the petitioner under the NI Act on the basis of oral as well as documentary evidence. Instead of facing the trial under the NI Act, pending before the CJM, Kamrup, the subsequent filing of case by the opposite party found to be a motivated proceeding only to defeat the claim of the petitioner. 21. Instead of facing the trial under the NI Act, pending before the CJM, Kamrup, the subsequent filing of case by the opposite party found to be a motivated proceeding only to defeat the claim of the petitioner. 21. In State of Haryana and others v. Bhajanlal and others, the Hon'ble Supreme Court has given certain guidelines as to under what circumstances power u/s 482 CrPC should be exercised by the High Court : parameter-7 of the Bhajanlal case is reproduced below: "wherein a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge". 22. The factual scenario as discussed above indicates that the complaint case u/s 420 IPC initiated by the respondent as a counter blast to the proceeding initiated by the petitioner. Continuation of such proceeding will be nothing but abuse of process of law. The learned JMFC , Dibrugarh while taking cognizance of the matter has not considered the aspect of pendency of case under NI Act, which was filed in first point of time. Cognizance taken thereof is not found proper and it fails to secure justice. 23. Now, Hon'ble Supreme Court in Pepsi Food Ltd. v. Special Judicial Magistrate reported in 1998(5) SCC 749 , held as below: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused" 24. In view of the legal propositions and the findings and discussions above, the petition is allowed. Consequently, the complaint case 312(c)/2012 pending before the learned JMFC, Dibrughar is hereby quashed and set aside. The respondent will appear and defend the case so filed by the petitioner vide Complaint Case No.1470/2012 pending before the learned CJM, Kamrup. 25. Return the LCR. -----