Belwa & P.S.- Muffashil (Rami patra), District- Purnia (Bihar) v. 1. The State of Jharkhand 2. Rajeev Kumar Gupta, S/o Gautam Kumar Gupta R/O
Case Details
Cr.M.P. No.2490 of 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2490 of 2021 ----- Md. Shamim Akhtar, Aged about:- 37 Years, S/O. Late Md. Islam, R/O. Mawjheli, P.O.:- Belwa & P.S.- Muffashil (Rami patra), District- Purnia (Bihar) … Petitioner Versus 1. The State of Jharkhand 2. Rajeev Kumar Gupta, S/o Gautam Kumar Gupta R/O. Chhota Panchgardh P.O. & P.S. :- Jirwabari, Dist. :- Sahibganj (Jharkhand) … Opposite Parties ------ For the Petitioner For the State For the O.P. No.2
Legal Reasoning
: Mr. Sudhanshu S. Choudhary, Advocate : Mr. Vineet Kr. Vashistha, Addl.P.P. : Mr. Shashi Kant Thakur, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court Heard the parties. 2. This Cr.M.P. has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 06.07.2018 by which cognizance has been taken of the offences punishable under Sections 406, 420, 506 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act by the learned S.D.J.M., Sahibganj in connection with Borio (J) P.S. Case No.50 of 2015 corresponding to G.R. No.92 of 2015. 3. The allegation against the petitioner is that the petitioner on 05.05.2013 cheated the informant/ opposite party No.2 and thereby dishonestly induced the opposite party No.2 to deliver Rs.46,700/- to the petitioner with a promise to pay the same within one months but did not pay the said money. 1 Cr.M.P. No.2490 of 2021 Subsequently on 01.12.2014, the petitioner issued a cheque for the said amount but the same was dishonoured upon being presented in the bank. 4. Learned counsel for the petitioner submits that there is specific provision for punishment of dishonour of a cheque as envisaged under Section 138 of the Negotiable Instrument Act, 1881, hence, the F.I.R. ought not have been registered for the offence punishable under Section 420 of the Indian Penal Code. It is next submitted that the allegation against the petitioner is false and the petitioner has already paid the money taken by him to the informant/opposite party No.2 but there is no evidence with the petitioner of making such repayment to the informant/opposite party No.2. It is next submitted that the case of the informant is based on photocopy of the cheque issued by the petitioner to the informant/ opposite party No.2. Hence, it is submitted that quashing of the order dated 06.07.2018 by which cognizance has been taken under Sections 406, 420, 506 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act by the learned S.D.J.M., Sahibganj in connection with Borio (J) P.S. Case No.50 of 2015 corresponding to G.R. No.92 of 2015, as prayed for by the petitioner, be allowed. 5. Learned Addl.P.P. appearing for the State and learned counsel for the informant/ opposite party No.2 on the other hand vehemently oppose the prayer for quashing of the said order dated 06.07.2018, as prayed for by the petitioner. It is next submitted by the learned Addl.P.P. appearing for the State and learned counsel for the informant/ opposite party No.2 that the offence of cheating took place on 05.05.2013 and since the very beginning the petitioner had the intention of cheating the informant/ opposite party No.2 and the cheque which was issued in a subsequent, separate and distinct offence 2 Cr.M.P. No.2490 of 2021 different from that of cheating, hence, no illegality has been committed by the learned Sub Divisional Judicial Magistrate by taking the cognizance of the offence consequent upon submission of charge-sheet against the petitioner. Hence, it is submitted that this petition, being without any merit, be dismissed. 6. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case State of M.P. vs. Awadh Kishore Gupta & Others reported in (2004) 1 SCC 691, that High Court cannot embark upon an enquiry as to whether the evidence is reliable or not in exercise of the jurisdiction under Section 482 of the Cr.P.C.; as that would be the function of the trial court. In the case of Monica Kumar (Dr.) & Another vs. State of Uttar Pradesh & Others reported in (2008) 8 SCC 781, the Hon’ble Supreme Court of India has held that the inherent power under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution. It is also a settled principle of law that at the stage of cognizance, the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence as has been held by the Hon’ble Supreme Court of India in the case of Sonu Gupta v. Deepak Gupta & Others reported in (2015) 3 SCC 424. 7. In the case of State of Karnataka & Another vs. Pastor P. Raju reported in (2006) 6 SCC 728, the Hon’ble Supreme Court of India has held as under in paragraphs-10 and 13:- “10. Several provisions in Chapter XIV of the Code of Criminal Procedure use the word “cognizance”. The very first section in the said Chapter viz. Section 190 lays down how cognizance of offences will be taken by a Magistrate. However, the word “cognizance” has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word “cognizance” is — “judicial hearing of a matter”. The meaning of the word has been explained by judicial pronouncements and it has acquired a 3 Cr.M.P. No.2490 of 2021 definite connotation. The earliest decision of this Court on the point is R.R. Chari v. State of U.P. [1951 SCC 250 : 1951 SCR 312 : AIR 1951 SC 207 : 1951 Cri LJ 775] wherein it was held : (SCR p. 320) “… ‘taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence’.” 13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.” and observed that taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. 8. Now, coming to the facts of the case, there is specific allegation against the petitioner of cheating the informant/opposite party No.2 by dishonestly inducing him to part with Rs.46,700/- on an occurrence which took place on 05.05.2013 and subsequently on 01.12.2014 he issued a cheque which was dishonoured upon presentation in the bank for payment. Under such circumstances, this Court finds that there is no illegality involved in the cognizance being taken by the learned Sub Divisional Judicial Magistrate upon submission of the charge-sheet against the petitioner in the instant case. 9. Accordingly, this petition, being without any merit, is dismissed and consequently the interim order, if any, stands vacated. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 22nd of March, 2023 AFR/ Animesh 4