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2022 DIGILAW 653 (JHR)

Kamlesh Tiwari v. State of Jharkhand

2022-06-14

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : 1. Heard Mr. Sanjeev Thakur, learned counsel for the petitioner, Mrs. Lily Sahay, learned counsel for the State and Mr. A.K. Rashidi, learned counsel for the O.P. No.2. 2. The present petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 10.09.2018 in connection with Town P.S. Case No. 131 of 2018, corresponding to G.R. Case No. 922 of 2018, pending in the Court of learned Judicial Magistrate, 1 Class, Palamau. 3. F.I.R. has been lodged by the informant alleging therein that the informant and petitioner are having good relations due to which the petitioner requested for friendly loan of Rs. 4,00,000/- from the informant to be invested in business of the petitioner. The informant in good faith in presence of witnesses gave Rs. 4,00,000/- for two months as per mutual agreement as this petitioner promised to the informant that loan amount will be repayed in two months. It is alleged that on demand of the repayment, the petitioner gave a cheque no. 14201063764 of Gramin Vananchal Bank. On deposit for encashment on 04.04.2018 the said cheque was returned with a remark “Limit Exceeded of Fund insufficient in the account” upon which the petitioner gave a legal notice to the petitioner even then loan amount has not been returned by the petitioner. 4. Mr. Sanjeev Thakur, learned counsel for the petitioner submits that for bouncing a cheque, the F.I.R. has been lodged under sections 420/406 I.P.C. and under section 138 of the N.I. Act and accordingly, cognizance has been taken in those sections of I.P.C. and N.I. Act. He further submits that once N.I. Act is there is no question of adding penal sections. He further submits that cognizance order is not in accordance with law. 5. Mr. A. K. Rashidi, learned counsel for the O.P. No. 2 submits that there is no question of illegality in the cognizance order. He submits that since the petitioner has cheated the O.P. No. 2 learned court below has rightly taken cognizance under sections 406, 420 I.P.C. and under section 138 N.I. Act. 6. The Court has gone through the cognizance order dated 10.09.2018 and finds that this order is not in accordance with law. He submits that since the petitioner has cheated the O.P. No. 2 learned court below has rightly taken cognizance under sections 406, 420 I.P.C. and under section 138 N.I. Act. 6. The Court has gone through the cognizance order dated 10.09.2018 and finds that this order is not in accordance with law. There is no doubt that for taking cognizance a detail order is not required to be passed by the court however what are the prima facie materials against the petitioner is required to be disclosed in the cognizance order, which is lacking in the case in hand. In the case of “ M/s GHCL Employees Stock Option Trust-Verus-M/s India Infoline Limited, reported in (2013) (2) East Cr. C. 326 (SC) the Hon’ble Supreme Court has held that before issuing summons the Court has to record its satisfaction that prima facie case is made out against the accused. The satisfaction is envisaged under Section 204 Cr.P.C. and not under section 190 Cr.P.C. This satisfaction has to be recorded only for the purpose of issuing process. The Magistrate has to see whether there are materials to proceed against the accused person. Consideration for taking cognizance is different than that of issuing process. One is directed towards the offence and the other is towards the persons. This cannot be mixed, even if a composite order is passed. 7. In view of the aforesaid facts and reasons analysis, order taking cognizance dated 10.09.2018 passed in connection with Town P.S. Case No. 131 of 2018, corresponding to G.R. Case No. 922 of 2018, pending in the Court of learned Judicial Magistrate, 1 Class, Palamau, is hereby quashed. 8. The matter is remitted back to the concerned court for proceed afresh in accordance with law. 9. The criminal miscellaneous petition stands disposed of. Pending I.A., if any, also stands disposed of.