1.Subodh Kumar Pandey 2.Rajesh Pandey v. 1.The State of Jharkhand 2.Bipin Kumar Singh
Case Details
IN THE HIGH COURT OF JHARKHAND, RANCHI ---- Cr.M.P. No. 276 of 2020 ---- 1.Subodh Kumar Pandey 2.Rajesh Pandey .... Petitioners -- Versus -- 1.The State of Jharkhand 2.Bipin Kumar Singh .... Opposite Parties ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner For the O.P.No.2 :- :-
Legal Reasoning
Mr. Amitesh Kumar Geasan, Advocate Mr. Jitendra Shankar Singh, Advocate ---- C.A.V On 11.06.2024 Pronounced On : 18/06/2024 The prayer in this petition has been made for quashing of the entire criminal proceeding including the order taking cognizance dated 27.03.2019 in connection with Complaint Case No.202 of 2019 pending in the court of learned Judicial Magistrate, First Class, Bokaro. 2. The complaint case has been filed alleging therein that the allegation against the petitioners is that they fraudulently obtained Rs.11,00,000/- (Eleven Lacs) from complainant as friendly loan on different dates between 07.10.2017 to 03.09.2018. It is further alleged that petitioner no.1 had assured the complainant that in case his son fails to return money than he would return it. It is further alleged against the petitioner no.2 in the presence of petitioner no.1 had given two cheques i.e. cheque no.064802 dated 11.01.2019 of Rs.8,00,000/- (Eight lacs) dated 26.03.2019 and cheque no.064803 dated 26.03.2019 of Rs.3,00,000/- (Three lacs) drawn on Federal Bank, Dhanbad and 1 Cr.M.P. No. 276 of 2020 stated that if he fails to return his money up to December, 2018, then he could present these cheques for encashment. Under the oral instruction of petitioners when complainant presented these cheques for encashment they were dishonoured with the remark ‘payment stopped by the drawer’. 3. Learned counsel appearing on behalf of the petitioners submitted that the petitioners have been falsely implicated in the case and according to him, there was no nexus of any transactional relationship between the petitioners and the complainant and no evidence is there to support that the petitioners have ever taken a single rupee from the complainant. He further pointed out that the petitioner no.1 is father of the petitioner no.2 and the cheque in question was issued by the petitioner no.2. In view of that, maliciously the petitioner no.1 has been implicated in the case. He submitted that if the cheque was dishonoured, only the case is required to be proceeded under section 138 of the Negotiable Instruments Act whereas the learned court has been pleased to take cognizance under section 138 of the Negotiable Instruments Act as well as under section 420 of the Indian Penal Code. He submitted that the prosecution against the IPC sections are not warranted as there is no intention of cheating from the very beginning. He submitted that admittedly the cheque was issued and it was dishonoured and pursuant to that complaint case was filed and the learned court was not required to take cognizance under section 420 of the I.P.C and petitioner no.1 has been falsely implicated in this case. On these grounds, he submitted that the entire criminal proceeding may kindly be quashed. 4. Mr. Jitendra Shanker Singh, the learned counsel for the 2 Cr.M.P. No. 276 of 2020 O.P.No.2 had drawn the attention of the Court to the complaint petition and submitted that the petitioner no.1 has asked to release the money in favour of the petitioner no.2 and he will take care of that and in view of that, the case against the petitioner no.1 is also made out. He submitted that when the fraudulent act is there, the learned court has rightly taken cognizance under section 138 of Negotiable Instruments Act and section 420 of the IPC and this aspect can be looked into by the learned court in the trial. 5. In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record including the complaint petition as well as the order taking cognizance. In the complaint petition, it was stated that a sum of Rs.15 lacs was taken as friendly loan by the petitioner no.2. For return of the amount, two cheques were issued which was dishonoured and the said cheque was signed by Rajesh Pandey who is petitioner no.2. The only allegation is made against the petitioner no.1 that he has asked to pay the said amount to the petitioner no.2. Apart from that, only to make out the case under section 420 of the IPC bald allegations are made of assurance. Further on perusal of complaint specific allegation is made by the complainant that the cheque given by the petitioners was dishonoured and subsequently the complaint case was filed and if the case is arising out of Negotiable Instruments Act, only on bald allegation section 420 IPC cannot be added in such type of cases and the learned court was only required to proceed against the person who has signed the cheque in light of section 138 of the Negotiable Instruments Act. When the provision and procedure are prescribed in the statute, it was not expected that the complainant will take different method. Further in 3 Cr.M.P. No. 276 of 2020 light of provisions made under the Negotiable Instruments Act, liability arises only against the signatory of the cheque. Admittedly, the cheque was issued by the petitioner no.2. A reference may be made to the case of Sunita Palita and Others v. Panchami Stone Querry reported in (2022) 10 SCC 152. Paragraph no.29 of the said judgment is quoted hereinbelow: “29. As held in K.K. Ahuja v. V.K. Vora [K.K. Ahuja v. V.K. Vora, (2009) 10 SCC 48 : (2009) 4 SCC (Civ) 1 : (2010) 2 SCC (Cri) 1181] when the accused is the Managing Director or a Joint Managing Director of a company, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company for the conduct of the business of the company. This is because the prefix “Managing” to the word “Director” makes it clear that the Director was in charge of and responsible to the company, for the conduct of the business of the company. A Director or an officer of the company who signed the cheque renders himself liable in case of dishonour. Other officers of a company can be made liable only under sub-section (2) of Section 141 of the NI Act by averring in the complaint, their position and duties in the company, and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence.” 6. In view of the above judgment and coming to the facts of the present case, it is crystal clear that the case is arising out of section 138 of Negotiable Instruments Act and for dishonour of the cheque in question, the complaint case has been filed. Admittedly, it is well-settled, that the person who has signed the cheque in question is only liable for prosecution under section 138 of Negotiable Instruments Act. The petitioner no.1 has not signed the cheque and bald allegations are made of assurance etc by the petitioner no.1. In view of that, to allow the proceeding to continue further so far as the petitioner no.1 is concerned will amount to abuse of process of law. 4 Cr.M.P. No. 276 of 2020 7. In view of above discussion, the cognizance under section 420 of the IPC is also not sustainable against the petitioner no.2. As such, entire criminal proceeding including the order taking cognizance dated 27.03.2019 in connection with Complaint Case No.202 of 2019 pending in the court of learned Judicial Magistrate, First Class, Bokaro so far as the petitioner no.1 is concerned are quashed. 8. This petition is allowed so far as the petitioner no.1 is concerned. 9. Since the special statute is there in the form of Negotiable Instruments Act, the allegations are made of dishonour of cheque and only on bald allegations section 420 of the IPC cannot be attracted and as such the order taking cognizance dated 27.03.2019 in connection with Complaint Case No.202 of 2019 pending in the court of learned Judicial Magistrate, First Class, Bokaro so far as petitioner no.2 is concerned, with regard to section 420 of the IPC, is also set-aside. 10. The order taking cognizance with regard to petitioner no.2 is, hereby, modified to the above extent. 11. The learned court will proceed against the petitioner no.2 under section 138 of Negotiable Instruments Act. 11. Cr.M.P. No.276 of 2020 is allowed in part in the above terms
Decision
and disposed of. 12. Pending petition, if any, also stands disposed of accordingly. ( Sanjay Kumar Dwivedi, J.) Jharkhand High Court, at Ranchi Dated 18/06/2024 SI/ A.F.R, 5 Cr.M.P. No. 276 of 2020