The High Court
Case Details
1 Cr.M.P. No. 3715 of 2018 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3715 of 2018 1. Rathindra Mohan Sinha @ Prabir Sinha 2. Somendra Mohan Sinha @ Bapun Sinha … Petitioners -Versus- 1. 2. The State of Jharkhand Krishna Kant Guha ----- … Opposite Parties
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- For the Petitioners For the State For O.P. No.2 : Mr. Mahesh Tewari, Advocate : Mr. Prabhu Dayal Agarwal, Spl.P.P. : Mr. Rishav Kumar, Advocate ----- 09/10.01.2024 Heard Mr. Mahesh Tewari, learned counsel for the petitioners, Mr. Rishav Kumar, learned counsel for opposite party no.2 and Mr. Prabhu Dayal Agarwal, learned counsel for the State. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 23.06.2014 arising out of Giridih (T) P.S. Case No.331/2013, pending in the Court of the learned Chief Judicial Magistrate, Giridih. 3. The FIR was lodged alleging therein that on 14.06.2012 at about 12 O' Clock at day time, the informant went to the house of the petitioners for collecting the outstanding amount and cheques from Rathindra Mohan Sinha. It was further alleged that the informant wanted to talk but the brother Somendra Mohan Sinha was in an aggravated mood to lower down the prestige used derogatory words. On protest, in the filthy languages he pushed the informant outside the house and seeing the attitude of the both brothers, the informant went away from there. The motive alleged for this occurrence was that in the year 2009, the petitioner no. 1 Rathindra Mohan Sinha had told the informant to open a showroom of Escort company, he was in need of some money and there was some balance in his name in 2 Cr.M.P. No. 3715 of 2018 the United Bank of India, Giridih Branch. As such the C.C. benefit was not being granted to him. It was also alleged that the petitioner No. 1 stated that Rs. 15 Lakh was in shortage. If the informant makes arrangement of the same, it was agreed that whatever profit would arise, the some portion of the same would also be given to him. On this it was alleged that the informant told him that one time it was not possible to arrange such a huge amount of money, but he would gradually make arrangements as and when required. In the year 2009, amount of Rs. 5 Lakh was given. In the month of December, the informant taking money from his friend, Rinkesh Kumar, Prakash Kumar Sahu, wife Payal Guha, Subodh Kumar Mandal, Urbani Kumar Gupta etc. and the amount of Rs. 10 lakh was arranged. Rathindra Mohan Sinha as security gave some cheques and stated that whenever and whatever amount is required, the same could be filled up and encashed. It was further alleged that Rathindra Mohan Sinha and his brother Sumendra Mohan Sinha sent these cheques to Mohan Escort Tractor and Farma Tractor showroom. Thereafter business of sale and purchase of truck started. Further, it was alleged that when the informant went to demand his share in the profit, on one pretext and other, the same was refused and he was told to wait for some time. It was further alleged that in the month March 2010, the informant again went for his money for which both the brothers refuted that in total 5 of them have jointly given the money and the petitioners would not be able to repay the same. One- one tractor would be given to all of them. The cost of tractors would be Rs. 27.50 lakhs. Further, it was alleged that rest of the money should be given by them and whatever outstanding amount should be given by the cheque. Further, it was alleged that these five persons agreed for one tractor each. They paid 5 Lakh in 3 Cr.M.P. No. 3715 of 2018 cash and Rs. 7.50 Lakh blank cheques, signed 7 cheques and documents including photocopy of the deed of the house, voter I.D, Photocopy of Pan Card, and other papers, these were required for taking the tractors. Further, it was alleged that Rathindra Mohan Sinha stated that whenever money would be required, the cheque would be filled up and encashed. One tractor was given to them on the same day without any papers. Two years have passed thereafter and rest of 4 tractors was demanded or all the amount which have been paid, on one and other pretext, the same is refused. When the informant came to realize that they would not get the tractor, he stopped the bank from making payment. Finally, it was alleged that both the brothers with an intention to cheat the money of the informant had given cause to the occurrence stated above. Finally in the concluding line it was stated that now the amount is used and the informant would be taken up and killed. A report to this effect has already been made to the Court of learned Chief Judicial Magistrate, Giridih. Under these facts, the present F.I.R was lodged. 4. Mr. Mahesh Tewari, learned counsel for the petitioners submits that prior to filing of the present case, petitioner no.1 filed a complaint case being Complaint Case No.772 of 2012 against opposite party no.2 on 08.06.2012, which was sent by the learned Court for registration of FIR and subsequently Giridih (Nagar) P.S. Case No.377 of 2013 was registered on 30.09.2013. He further submits that in repercussion of that case, opposite party no.2 has lodged the present case being Giridih (Nagar) P.S. Case No.331 of 2013, dated 18.09.2013. He submits that the case is purely civil in nature, however, criminal colour has been given. He also submits that if a civil nature of case is there, the case of the petitioners is covered in view of 4 Cr.M.P. No. 3715 of 2018 the judgment passed by the Hon'ble Supreme Court in the case of Vijay Kumar Ghai & others v. The State of West Bengal and others, reported in 2022 LiveLaw (SC) 305. He further submits that the cheques issued by opposite party no.2 were not honoured. 5. The said argument is being resisted by Mr. Rishav Kumar, learned counsel for opposite party no.2 and he submits that it is not the case that the cheques issued by opposite party no.2 were not honoured. He submits that the complaint case/FIR filed by petitioner no.1 against opposite party no.2 is registered under different Sections of the Indian Penal Code and not under Section 138 of the Negotiable Instruments Act. He further submits that intention of cheating from very beginning was there. To buttress this argument, he refers to Illustration (f) of Section 415 of the Indian Penal Code and submits that the allegations are there that from very beginning, the intention was there not to refund the amount. 6. Mr. Prabhu Dayal Agarwal, learned counsel for the State submits that Illustration (f) of Section 415 of the Indian Penal Code is attracted in the present case. 7. The Court has gone through the materials on record and finds that the learned Court has been pleased to take cognizance vide order dated 23.06.2014. In the order taking cognizance, at least judicial mind is required to be applied, which is lacking in the case in hand as the word 'cognizance' is filled up in blank space, which suggests that there is non-application of judicial mind. 8. In view of the above facts, the order taking cognizance dated 23.06.2014 passed by the learned Chief Judicial Magistrate, Giridih in connection with Giridih (T) P.S. Case No.331 of 2013, pending in that Court is set aside. The matter is remitted back to the learned Court to pass a fresh 5 Cr.M.P. No. 3715 of 2018 order, in accordance with law. 9.
Decision
Accordingly, this petition is disposed of. Ajay/ (Sanjay Kumar Dwivedi, J.)