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2018 DIGILAW 793 (ORI)

Sunil Kumar Garg v. State of Odisha

2018-11-02

J.P.DAS

body2018
JUDGMENT J.P. DAS, J. - This common order shall dispose of both the above applications filed by the same petitioners against the same opposite parties, since the matters in both the applications arose out of the same transactions. 2. In CRLMC No. 5153 of 2015, the petitioners assail the order of cognizance passed by the learned S.D.J.M. (Panposh), Rourkela in G.R. Case No. 633 of 2014 for the offences punishable under Sections 406/511/34 of the Indian Penal Code corresponding to Raghunathpalli P.S. Case No. 66 of 2014 originally registered under Sections 379/411/424/34 of the I.P.C. In CRLMC No. 1720 of 2015, the petitioners assail the order of cognizance passed by the learned S.D.J.M.(Panposh), Rourkela in G.R. Case No. 634 of 2014 for the offences punishable under Sections 418/420/34 of the I.P.C. corresponding to Raghunathpalli P.S. Case No. 67 of 2014 originally registered under Sections 418/42/506/34 of the I.P.C. 3. The petitioners are the Managing Director and Director of one M/s Good Luck Capital Private Limited of which M/s Good Luck Traders (henceforth mentioned as “G.L.T.”) is a sister concern dealing with Steel Business, having its head office in Delhi. The backdrop of the dispute between the parties, cutting short the long chain of events, is that he petitioners came in contact with the opposite party No. 2 who happened to be the informant in both the cases and was the Managing Director of one Shivom Minerals Ltd. along with one Mr. Akash Gupta as Director having their business and office at Rourkela in Sundergarh district. The petitioners and the opposite party for their companies entered into two M.O.U. on different terms and conditions for supplying of minerals and carrying on steel business. There were number of financial transactions between the two companies and the opposite party informant issued two cheques for rupees one crore forty lakhs each in favour of the G.L.T on 17.11.2012 in order to secure certain payments said to have been made by the G.L.T. in favour of the Firm of the informant. The said two cheques are the subject matter in CRLMC 5153 of 2015. The said two cheques are the subject matter in CRLMC 5153 of 2015. Subsequently, in the month of December, 2012 the informant issued further two cheques for rupees one crore forty lakhs and twenty eight lakhs respectively in favour of the G.L.T. The initial business agreed upon between the parties could not proceed and they entered into the second M.O.U for carrying on further business. In the month of April, 2013 the informant-Company issued three further cheques each amounting to rupees one crore in favour of the G.L.T.. As per the second M.O.U. the G.L.T. was to provide 75% of the investment and 25% was to be provided by the Company of the informant. Thereafter, the G.L.T. could not obtain mineral trading lincese from the State Government for which the business under the second M.O.U. also could not proceed. Thereafter, the informant-Company requested the G.L.T. to return all the seven cheques issued by them and the petitioner allegedly stated that the first two cheques were already returned and the balance five cheques would returned shortly thereafter. The informant searched for the two cheques but could not find it and lodged a report at Raghunathpalli P.S. and informed the concerned Bank for stopping the payment. It was further alleged by the informant the apart from telling falsely that the first two cheques were returned to the informant Company, the petitioners presented all the seven cheques for encashment instead of returning the same to the informant since all their business transactions as per agreement failed. Hence, the informant filed two complaint petitions which were subsequently registered at Raghunathpalli P.S. vide F.I.R. Nos. 66 and 67 and after completion of investigation, charge sheets have been filed leading to taking of cognizance in both the cases as stated hereinbefore, which have been challenged in the present applications. 4. It is the case of the petitioners in both the cases that after entering into M.O.U. on demand by the informant for business transactions, they transferred different amounts at different times in favour of the Company of the informant through R.T.Gs. and the Company of the informant in order to secure those payments, had issued the cheques with a request not to encash those cheques by the Company of the petitioners. and the Company of the informant in order to secure those payments, had issued the cheques with a request not to encash those cheques by the Company of the petitioners. It is their further case that the informant-Company making false promises and representing fabricated transactions placed lucrative proposals before the Company of the petitioner with an ulterior motive of cheating. It is their case that since the business transactions failed due to refusal of licence by the State Government as well as the mischief of the informant Company, they presented the cheques for encashment but those were bounced from the Bank, for which, they lodged an F.I.R. before Preetvihar P.S., Delhi alleging offences punishable under Section 406/420/468/471/34, I.P.C. It is their case that in order to escape the liability for the offences as aforesaid apart from the prosecution under Section 138 of the N.I.Act, the informant has lodged two false complaints with concocted allegations and the learned S.D.J.M. without proper application of judicial mind, has taken cognizance in both the cases which should be quashed. 5. It is the case of the opposite party-informant as well as the State that the issuance of cheques by the informant to the petitioners remained admitted. It is also admitted that the business transactions as agreed upon, could not succeed, for which, the petitioners were liable to return the cheques. But, they fraudulently tried to encash those cheques for which the informant lodged the complaint and in order to escape the liability, the petitioners have lodged a false F.I.R. against the informant in Delhi. It was further submitted on behalf of the opposite parties that the police after completion of investigation has found out the truth in favour of the informant’s allegation apart from the fact that one of the petitioners in course of investigation has also admitted before the Police about the allegations made by the informant. It was also submitted that the allegations as made by the informant having been found out to be true prima-facie, charge-sheets have been filed and the learned S.D.J.M. has rightly taken cognizance thereupon. The submissions and the pleas as have been advanced on behalf of the petitioners are the matters which can only be gone into in course of trial on evidence and those could not have been taken into consideration by the learned trial Court at the time of taking cognizance. 6. The submissions and the pleas as have been advanced on behalf of the petitioners are the matters which can only be gone into in course of trial on evidence and those could not have been taken into consideration by the learned trial Court at the time of taking cognizance. 6. The dispute between the parties as per their submissions is that the informant issued seven cheques in favour of the petitioners for certain business transactions as per two M.O.U. and since the business could not proceed the petitioners were liable to return those cheques to the informant which they did not and put those cheque for encashment instead fraudulently. The plea advanced by the petitioners is that in course of their business transactions, they had transferred huge amounts to the account of the informant-Company through R.T.Gs at different times and the cheques were issued by the informant to secure those payments and since the business failed and the informant did not refund the amounts, the cheques were presented for encahshment but bounced from the Bank. Simply taking into consideration the submissions and counter submissions as aforesaid it can safely be said that all these matters could not have taken into consideration at the time of taking cognizance. The allegations as made by the informant have been found out to be prima-facie true by the Investigating Agency and the cognizance has been taken of the offences on submission of the charge-sheet. As per the settled proposition of law, the accused persons had no locusstandi to place their defence plea at the time of cognizance and the learned trial Court is only to see as to whether the allegations as made are prima-facie true to proceed against he accused persons. 7. The main thrust of argument advanced on behalf of the petitioners was that the informant has lodged two complaints only to escape the liability of the criminal case filed by the petitioners before the Delhi Police and also the liability for the offence under Section 138 of the N.I.Act. Thus, it was submitted that the two cases filed by the informant are nothing but counter-blast to the cases filed by the petitioners. Thus, it was submitted that the two cases filed by the informant are nothing but counter-blast to the cases filed by the petitioners. But as seen from the record, the first F.I.R. of the informant was registered on 20.03.2014 and the second F.I.R. was registered also on the same day at Raghunathpalli P.S. in the district of Sundergarh, whereas the F.I.R. of the petitioners was registered at Preetvihar P.S., Delhi on 23.07.2014 i.e. four months after the complaint lodged by the informant. Thus, it cannot be said prima-facie that the F.I.Rs registered on the complaint of the informant-opposite party were counter-blast to the cases lodged by the petitioners. So far as the liability under Section 138 of the N.I. Act is concerned, it is neither been pleaded by the petitioners nor has been placed as to whether any complaint has been lodged by the petitioners before the appropriate Court against the informant for the offence under Section 138 of the N.I. Act and if lodged, the date thereof. 8. Certain citations of case laws have been filed on behalf of the petitioners in support of their contentions that the F.I.Rs lodged as counter-blast to escape the liability for the offence under the Negotiable Instrument Act or for the other offences should be quashed in exercise of the power under Section 482 of the Cr. P.C. by the High Court. 9. But, it is the settled position of law that while exercising the jurisdiction under Section 482 of the Cr.P.C., this Court should not enter into highly disputed question of fact and such powers should be exercised sparingly and with caution only to prevent the abuse of process of the Court and not to stifle a legitimate prosecution (2004) 6 SCC 522 (State of Andhra Pradesh Vrs. Golkunda Lingaswami and Anr). While exercising such powers, this Court cannot embark upon an enquiry as to the reliability of the evidence and sustainability of accusation, which is the responsibility of the trial Court. It is also the position of law that even if the dispute between the parties appear to be civil in nature still a criminal prosecution is not barred. 10. While exercising such powers, this Court cannot embark upon an enquiry as to the reliability of the evidence and sustainability of accusation, which is the responsibility of the trial Court. It is also the position of law that even if the dispute between the parties appear to be civil in nature still a criminal prosecution is not barred. 10. In the present case, as narrated hereinbefore, the informant lodged the complaints with the allegations that he had issued the cheques for continuance of business transactions and deposit of his share of investment which should have been returned to him due to failure of the business as per the M.O.U. Per contra, it is the case of the petitioners that they had transferred different amounts at different times to the accounts of the informant’s Company through R.T.Gs. and the cheques were issued to secure those amounts and hence, they were at liberty to encash those cheques in order to get back their amount paid to the informant-Company. Learned counsel appearing for the petitioners placing voluminous documents relating to the business transactions between the parties submitted that the petitioners were not liable to return the cheques to the informant as alleged and that as per the terms of agreement, the informant opposite party had issued those cheques to secure the payments made by the G.L.T. of the petitioners in favour of the informant’s Company through R.T.Gs. at different times. Suffice it to say that to examine those documents and their implications would amount to a mini trial which is neither permissible nor called for at this stage. The documents placed on behalf of the petitioners as plea of defence can only be thrashed out on evidence in course of trial. The facts and the circumstances as revealed, do not lead to a conclusion that there is absolutely no case against the petitioners and the trial of the dispute would be a futile exercise wasting the time of the Court so as to quash the orders of cognizance in exercise of the power under Section 482 of the Cr.P.C.. Accordingly, both the applications stand rejected being devoid of any merit. Applications rejected.