Anil Singh … … v. 1. The State of Jharkhand 2. Devnath Prasad
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 2775 of 2022 Anil Singh … …. Petitioner Versus 1. The State of Jharkhand 2. Devnath Prasad … …. Opp. Parties With Cr. M. P. No. 2782 of 2022 Anil Singh … …. Petitioner Versus 1. The State of Jharkhand 2. Devnath Prasad … …. Opp. Parties With Cr. M. P. No. 2783 of 2022 Anil Singh … …. Petitioner Versus 1. The State of Jharkhand 2. Devnath Prasad … …. Opp. Parties With Cr. M. P. No. 2784 of 2022 Anil Singh … …. Petitioner Versus 1. The State of Jharkhand 2. Devnath Prasad … …. Opp. Parties With Cr. M. P. No. 2785 of 2022 Anil Singh … …. Petitioner Versus 1. The State of Jharkhand 2. Devnath Prasad ----- … …. Opp. Parties
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- For the Petitioner For the State For the O.P. No. 2 : M/s Kaushik Sarkhel & Anupam Anand, Advocates : M/s Vineet Kr. Vashistha, Nehala Sharmin, S.P.P. Abhay Kr. Tiwari & Manoj Kr. Mishra, A.P.P. : Mr. Santosh Kr. Soni, Advocate ----- Oral Order 08 / Dated : 19.09.2023 All these criminal misc. petitions are between the same parties and the order taking cognizance under Section 138 of N.I. Act in different complaint cases is under challenge on identical grounds and, therefore, they are being heard
Decision
together and shall be disposed of by this common order. 1. Cr. M. P. No. 2775 of 2022 has been filed for quashing the order dated 2 09.07.2018 passed in Complaint Case No. 653 of 2018. The petitioner also prays for quashing of consequential proceedings including the order dated 21.11.2019. Cr. M. P. No. 2782 of 2022 has been filed for quashing the order dated 19.07.2018 passed in Complaint Case No. 919 of 2018. The petitioner also prays for quashing of consequential proceedings including the order dated 08.11.2019. Cr. M. P. No. 2783 of 2022 has been filed for quashing the order dated 11.07.2018 passed in Complaint Case No. 655 of 2018. The petitioner also prays for quashing of consequential proceedings including the order dated 25.07.2019. Cr. M. P. No. 2784 of 2022 has been filed for quashing the order dated 17.09.2018 passed in Complaint Case No. 1193 of 2018. The petitioner also prays for quashing of consequential proceedings including the order dated 23.07.2019. Cr. M. P. No. 2785 of 2022 has been filed for quashing the order dated 01.08.2018 passed in Complaint Case No. 654 of 2018. The petitioner also prays for quashing of consequential proceedings including the order dated 25.06.2019. 2. The case of the complainant is that the petitioner had taken Rs. 63 Lakh in 2016 from him under an agreement to sell 3 acre and 44 decimals of land. Neither the sale deed was executed nor the amount was returned. Consequently, an understanding was reached between the both sides under which the amount taken was to be returned by five cheques drawn in the name of the complaint. Each of the cheques was presented for payment on different dates and on being dishonoured separate cases have been filed and separate cognizance has been taken which is under challenge in these quashing petitions. 3. Learned counsel for the petitioner has submitted that the order of cognizance has been challenged on the ground that earlier the FIR being Hazaribagh (Sadar) P.S. Case No. 508 of 2018 was registered under Sections 406, 409, 418 and 420 of IPC by the complainant against the petitioner for non- execution of sale deed in pursuance of agreement of sale. On the basis of the compromise, final form was submitted on 30.09.2021 and in pursuance of compromise, the petitioner executed the sale deed for 1 acre and 17 decimals of land in favour of the complainant and the land was also mutated in the 3 name of the complainant and he was accepted as tenant and revenue was paid and revenue receipt has been received in his name and he is in possession of the said land. 4. The main plank of argument advanced on behalf of the petitioner is that the compromise dated 18.03.2020 (Annexure-3) on the basis of which final form was submitted and it was agreed between the parties that all the complaint cases under Section 138 of NI Act would be withdrawn. Although the petitioner has executed the sale deed but these cases have not been withdrawn as agreed upon by the parties. Reliance is placed on (2005) 3 SCC 299 para 8 wherein it has been held that one of the parties complied with terms of the compromise and the other did not do so and therefore continuation of criminal proceeding shall be an abuse of process of Court. 5. It is further submitted that with regard to cancellation of bail that there was no intention on the part of the petitioner to evade the process of Court but in view of the negotiation between the parties, he had not appeared and in those circumstance, the issuance of non-bailable warrant is in the teeth of ratio laid down by the Hon’ble Supreme Court in (2012) 9 SCC 791 wherein it has been held that before issuing non-bailable warrants the Court should strike of balance between societal interest and personal liberty and exercise its discretion cautiously. 6. It is submitted by learned counsel for the complainant that the agreement of sale was executed by the petitioner in favour of the Complainant on 01.12.2015 to execute the registered sale deed in his favour for a land measuring 3 acre and 44 decimals under different Khata of Village Banahappa, Thana Sadar, Hazaribagh. The complainant has made payment of Rs. 63 Lakh to the petitioner in reference to the said agreement and when the sale deed was not executed, the petitioner agreed to return the consideration amount received by him by way of different cheques which were handed over to the complainant and on presentation, the said cheques got dishonoued. 7. The sale that has been executed in favour of the complainant is not with respect to the said plot of land for which there was earlier agreement for sale and a joint family property has been sold only to evade the return of the amount already taken from the complainant. Having considered the rival submissions advanced on behalf of both sides, as far as the order of cognizance in all these cases is concerned, the 4 plea that has been raised is essentially to rebut the presumption of the legally enforceable debt with respect to the cheques issued by the petitioner in favour of the Complainant. This Court is of the view that the order of cognizance cannot be interfered with on the basis of defence plea that the registered sale deed has been executed by the Petitioner in favour of the Complainant, against the amount that was received. Therefore there is no legally enforceable debt for which the cheque was issued, as a security for the execution of the sale. This is an issue which can be raised and decided in trial and not at the stage of cognizance. Prima facie case is made out and there is no infirmity in the cognizance order. With respect to the prayer for quashing of non-bailable warrant issued against the petitioner in these cases, this Court finds sufficient cause for non- appearance in view of the compromise and settlement negotiation going between the parties. Under the circumstance, the order issuing non-bailable warrant in all these cases is quashed. However, the petitioner is directed to appear before the trial court within three weeks from the date of this order. All Cr. Misc. Petitions are, accordingly, disposed of. (Gautam Kumar Choudhary, J.) AKT Uploaded