Prem Kumar Sahu, S/o Ishwar Sahu, aged about 47 years, R/o Govindpur, Karra, P.O v. 1. The State of Jharkhand 2. Supriti Kumari, W/o.- Jaiprakash Jaisawal, R/o – Shivalaya
Case Details
Cr. M.P. No.1473 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1473 of 2022 ------ Prem Kumar Sahu, S/o Ishwar Sahu, aged about 47 years, R/o Govindpur, Karra, P.O. & P.S. – Jariyagarh, District- Khunti (Jharkhand) … Petitioner Versus 1. The State of Jharkhand 2. Supriti Kumari, W/o.- Jaiprakash Jaisawal, R/o – Shivalaya Road, Opposite Parties P.O., P.S. & Dist.- Khunti … For the Petitioner For the State For the O.P. No.2 ------
Legal Reasoning
: Mr. Sidhartha Roy, Advocate : Mr. Ravi Prakash, Spl. P.P. : Mr. Gaurav, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the F.I.R. as well as the entire criminal proceedings in connection with Khunti P.S. Case No.137 of 2021 registered for the offences punishable under Sections 406, 420 of the Indian Penal Code and Section 138 of the N.I. Act, pending in the court of Chief Judicial Magistrate, Khunti. 3. The brief facts of the case is that the petitioner took a loan of Rs.19,00,000/- from the complainant/informant; part of which was taken by transferring the amount in the name of others and part of the same was transferred to the account of the petitioner in the name of Maa Shanti Enterprises. In December, 2020, the complainant/informant demanded back her money. The petitioner issued a cheque for Rs.7,00,000/- of Bank of India in 1 Cr. M.P. No.1473 of 2022 the name of the complainant/informant and promised that the rest amount will be paid by him by the end of February, 2021 and requested the complainant/informant to deposit the cheque after a period of 15 day for encashment of the same. The complainant/informant on 07.01.2021 deposited the cheque in her bank account with Punjab National Bank but the cheque was dishonoured as the petitioner issued stop payment instructions to his bank for not honouring the said cheque. The petitioner, thereafter tendered apology and promised to pay money within 15 days but even after that the petitioner did not pay the said amount and ultimately on 31.01.2021 refused to pay the amount. The complainant/informant issued the demand notice which was received by the petitioner but even then the petitioner did not pay the said amount. The complainant/informant filed Complaint Case No.26 of 2021 and the same being forwarded to police by the Chief Judicial Magistrate, Khunti under Section 156 (3) of Cr.P.C. for proper investigation; upon registration of a case. Basing upon the same, Khunti P.S. Case No.137 of 2021 was registered for the offences punishable under Sections 406, 420 of the Indian Penal Code and Section 138 of the N.I. Act. After completion of the investigation, police submitted charge-sheet against the petitioner for having committed the offences punishable under Sections 406, 420 of the Indian Penal Code and Section 138 of the N.I. Act. 4. Learned counsel for the petitioner submits that the complainant has failed to satisfy that prior to filing of the complaint she took recourse of provisions laid down under Section 154 (1) and 154 (3) of Cr.P.C. and in the absence of the same the reference to police to register the F.I.R. under Section 156 (3) of Cr.P.C. is illegal. It is next submitted that since the cheque was not 2 Cr. M.P. No.1473 of 2022 issued in his personal capacity but in capacity of the proprietor of the firm in the name and style of Maa Shanti Enterprises and Maa Shanti Enterprises has not been arrayed as an accused, hence, the prosecution under Section 138 of Negotiable Instrument Act cannot proceed. It is then submitted that the brother of the informant has defalcated huge amount of money from the shop of the petitioner and committed theft of various signed cheques from the petitioner’s firm. Hence, the petitioner gave information to the Bank, regarding the lost cheque and lodged Sanha in the Police Station. The petitioner has also lodged an F.I.R. regarding the misuse of the cheque by the informant vide Khunti P.S. Case No.26 of 2022. 5. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case Sripati Singh (since deceased) through his Son Gaurav Singh vs. The State of Jharkhand & Another reported in (2021) 7 Supreme 508 paragraph-22 of which reads as under:- “22. These aspects would prima-facie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent No. 2 was presented. On such cheque being dishonoured, cause of action had arisen for issuing a notice and presenting the criminal complaint under Section 138 of N.I. Act on the payment not being made. The further defence as to whether the loan had been discharged as agreed by respondent No. 2 and in that circumstance the cheque which had been issued as security had not remained live for payment subsequent thereto etc. at best can be a defence for the respondent No. 2 to be put forth and to be established in the trial. In any event, it was not a case for the Court to either refuse to take cognizance or to discharge the respondent No. 2 in the manner it has been done by the High Court. Therefore, though a criminal complaint under Section 420 IPC was not sustainable in the facts and circumstances of the instant case, the complaint under section 138 of the N.I Act was maintainable and all contentions and the defence were to be considered during the course of the trial.” (Emphasis supplied) 3 Cr. M.P. No.1473 of 2022 6. It is next submitted that since it is a mere default in payment of loan taken by the petitioner in time and in the absence of any allegation that the petitioner has any intention to deceive the complainant/informant at the time of taking loan, the offence punishable under Section 420 of the Indian Penal Code is not made out. It is next submitted that similarly the offence punishable under Section 406 of the Indian Penal Code is also not made out against the petitioner. Hence, it is submitted that the F.I.R. as well as the entire criminal proceedings in connection with Khunti P.S. Case No.137 of 2021 which is pending in the court of Chief Judicial Magistrate, Khunti, be quashed and set aside. 7. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 vehemently oppose the prayer to quash the F.I.R. as well as the entire criminal proceedings in connection with Khunti P.S. Case No.137 of 2021 registered for the offences punishable under Sections 406, 420 of the Indian Penal Code and Section 138 of the N.I. Act, pending in the court of Chief Judicial Magistrate, Khunti and submit that there is specific and direct allegation against the petitioner for having committed the offence of cheating as is evident from the conduct of the petitioner by issuing stop payment instruction to the bank after issuing the cheque and the same amounts to the intention of deception from the very beginning and as he has taken the money and has not returned the same, hence, the offence punishable under Section 406 of the Indian Penal Code is made out against the petitioner. In respect of the offence punishable under Section 138 of the Negotiable Instrument Act, learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 submit that the ratio of the judgment of the Hon’ble Supreme Court of 4 Cr. M.P. No.1473 of 2022 India in the case of Aneeta Hada vs. Godfather Travels and Tours Private Limited reported in (2012) 5 SCC 661 is not attracted in this case because in this case there is direct allegation against the petitioner that the petitioner took the loan and the petitioner issued the cheque and all criminal acts were done by the petitioner and merely he used the name of his proprietorship firm as name lender and there is direct allegation against the petitioner of the petitioner himself having committed the offence and there is provision of vicarious liability in Negotiable Instrument Act, 1881. Therefore, in this case the prosecution of the petitioner in respect of the offence punishable under Section 138 of the N.I. Act is not illegal. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 8. Having heard the rival submissions made at the Bar and after going through the materials available in the record, in view of the judgment of the Hon’ble Supreme Court of India in the case of Sripati Singh (since deceased) through his Son Gaurav Singh vs. The State of Jharkhand & Another (supra), as merely because the petitioner has taken money and has not repaid the same, in the absence of any specific allegation against him of having any intention to deceive the complainant/informant at the time of taking money, the offence punishable under Section 420 of the Indian Penal Code is not made out. In the absence of any allegation of any dishonest misappropriation of the money taken by the petitioner from the complainant/informant, the offence punishable under Section 406 of the Indian Penal Code is not made out either. 9. So far as the contention of the petitioner that in the absence of the proprietary firm of the petitioner having not been arrayed as an accused, the entire criminal proceeding against the petitioner be quashed and set aside, is concerned, it is pertinent to mention here that there is specific allegation against 5 Cr. M.P. No.1473 of 2022 the petitioner of committing all the criminal acts constituting the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 and merely because he has used the name of his proprietary firm and the cheque also bears the signature of the petitioner, under such circumstances, this Court is of the considered view that not arraying the proprietorship firm with which except the petitioner no one else is associated, is certainly not a valid reason to quash and set aside the entire criminal proceeding so far as the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 is concerned. 10. So far as the contention of the petitioner that the complainant did not approach the police before lodging the complaint and there is no such averment in the complaint is concerned, it is pertinent to mention here that the provisions of Negotiable Instrument Act, 1881 envisages of a complaint to be filed in case the cheque is dishonoured; if after issuing the demand notice, the amount for which the cheque is issued, is not paid. In this case, the complainant filed the complaint but besides the penal provisions of Section 138 of Negotiable Instrument Act, 1881, she claimed that that the offence punishable under Section 420, 406 of the Indian Penal Code is also made out. 11. As discussed above, this Court has already held that under the facts of the case the offence punishable under Sections 406, 420 of the Indian Penal Code is not made out. So, obviously the complaint upon being referred to police under Section 156 (3) of Cr.P.C. by the court of Chief Judicial Magistrate, Khunti is confined to the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 and for the compliance of approaching the police as is envisaged under Section 154 (1) and 154 (3) of Cr.P.C. is not 6 Cr. M.P. No.1473 of 2022 necessary, in respect of the offence punishable under section 138 of the Negotiable Instruments Act. Under such circumstances, this Court is of the considered view that the complainant/informant not approaching the police before filing the complaint will not be of any disadvantage to her, nor make the case, fatal. 12. In view of the discussions made above, it is made clear that the F.I.R. as well as the entire criminal proceedings in connection with Khunti P.S. Case No.137 of 2021 which is pending in the court of Chief Judicial Magistrate, Khunti will be limited to the complaint under Section 138 of the Negotiable Instrument Act, 1881 and the trial court will proceed in accordance with law.
Decision
13. This Cr.M.P. stands disposed of with the aforesaid modification only. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 24th of August, 2023 AFR/ Animesh 7