Bombay High Court
Purushottam Gangabhishan Somani And ... vs The State Of Maharashtra And Another on 18 October, 2024
2024:BHC-AUG:25635
(1) cri wp 1372.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1372 OF 2023
1. Purushottam Gangabhishan Somani
Age: 57 years, Occu. Business,
R/o Ekta Nagar, Pathri,
Tq. Pathri, Dist. Parbhani.
2. Ashish Purushottam Somani
Age: 32 years, Occu. Business,
R/o Ekta Nagar, Pathri,
Tq. Pathri, Dist. Parbhani. ... PETITIONERS
V/s.
1. The State of Maharashtra,
2. Mukund Dinkarrao Chaudhari
Age-48 years, Occ. Agriculture,
R/o Bhakt Niwas, Sai Road,
Pathri, Tq. Pathri, Dist. Parbhani. ... RESPONDENTS
.....
Mr. Sudharshan J. Salunke, Advocate for the Petitioners
Mr. V. M. Chate, APP for the Respondent-State
Mr. S.L. Deshpande, Advocate for the Respondent No.2
.....
CORAM : Y.G. KHOBRAGADE, J.
RESERVED ON : 09.10.2024
PRONOUNCED ON : 18.10.2024
JUDGMENT:
-
1. Rule. Rule made returnable forthwith. Heard finally with
consent of both the sides. Heard at length Mr. Sudarshan Salunke the
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learned Counsel appearing for the Petitioners, Mr. V.M. Chate the learned
APP for the Respondent No.1-State and Mr. S. L. Deshpande the learned
counsel appearing for the Respondent No. 2.
2. The present Respondent No.2 is the original complainant in
criminal complaint bearing SCC No. 362 of 2015 (original SCC No. 140 of
2014) and the present Petitioner No.1 is the original Accused. (For the
sake of brevity, the parties to the present petition would be referred as
Complainant and the Accused).
3. Facts giving rise to the filing of present petition is that initially,
the Respondent No.1 filed a complaint bearing SCC No. 362 of 2015
(original SCC No.140 of 2014) under Section 138 of the Negotiable
Instruments Act on the ground that in the year 2013-2014, he
(Complainant) produced more than one thousand quintals of cotton from
his agriculture field and he was intending to sell said produce, however,
the Accused No.1 (Petitioner No.1) approached him and had shown his
willingness to purchase the said cotton. After due negotiations between
all stakeholders and the Accused No.1 in presence of son of accused
(Petitioner No. 2), wife of Accused No.1 and brother-in-law (i.e. brother
in law of wife) who resides at Ambad, the Accused No.1 agreed to
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purchase total 1008 quintal of cotton from the complainant @ Rs. 5,500/-
per quintal and had agreed to pay price of cotton after three months.
Accordingly, on 15.12.2013, the Accused No.1 weighed total 1008 quintal
cotton and issued a Cheque bearing No. "465113" dated 31.02.2014
drawn on Buldhana Urban Co-operative Bank, Manwat Branch for
repayment of price of the cotton. On 01.04.2014, the complainant
deposited the said cheque with his banker for encashment, however, the
said cheque returned without encashment with banker's memo for the
reason 'Insufficient Fund'. Therefore, on 21.04.2014, the complainant
issued a mandatory notice through his counsel by RPAD. The Accused
No.1 was duly served with the said notice on 22.04.2014 but the accused
neither replied to the said notice nor complied with the same. Therefore,
the complainant lodged a complaint bearing SCC No. 362 of 2015
(original SCC No. 140 of 2014) under Sec. 138 of the Negotiable
Instruments Act.
4. Needless to say that, on 21.05.2014, the learned Judicial
Magistrate First Class, Pathri passed an order below Exh.1 and issued
process against the Accused No.1 for the offence punishable u/s 138 of
the N.I. Act. However, subsequently, on 17.01.2015, the learned
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Magistrate passed an order below Exh.1 and returned the said complaint
for presentation before the Court having jurisdiction as per the guidelines
framed in Dashrath Rupsing Rathod V/s. State of Maharashtra & Anr.;
2014 (3) KCCR 2313 (SC). Therefore, said complaint was re-registered
as SCC No. 37 of 2014 on the file of learned Judicial Magistrate First
Class, Manwat. However, on 21.11.2015, the Judicial Magistrate First
Class, Manwat passed an order considering (Amendment to the
Negotiable Instruments Act) Ordinance No. 7 of 2015 dated 22 nd
September, 2015 and returned the said complaint to the Court having
jurisdiction where the drawee bank is situated. Therefore, the said
complaint was further re-registered as SCC No. 362 of 2015 with the
Judicial Magistrate First Class, Pathri, Dist. Parbhani.
5. After framing of charges, the Complainant examined himself
(C.W. 1) and other witnesses i.e. C.W. 2 Shri Vijay Sonwane, Branch
Manager, of Buldhana Urban Co-op., Bank, Pathri and C.W. 3 Shri
Rajkumar Sarda, Branch Manager, of Buldhana Urban Co-op., Bank,
Manwat.
6. Since, it has come in evidence of the C.W. 3 Shri Rajkumar
Sarda that the subject matter of cheque is not issued from the account of
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the Accused No.1 Purushottam but the said cheque was issued from the
account of the Accused No.2- Ashish Purushottam Somani, the son of the
Accused No.1 and as such both father and son are involved in cheating
the complainant. Therefore, the complainant filed Exh. 54, an application
seeking permission to implead the Accused No. 2 Ashish s/o Purushottam
Somani and framing of additional charges punishable under Sec. 420 r/w
Sec. 34 of IPC. On 01.08.2017, the learned Trial Court passed an order
and partly granted Exh.54 and permitted the complainant to add Ashish
Purushottam Somani as the Accused No.2, however, the learned trial
Court declined to issue process as against the Accused No.2 for the
offence punishable under Sec. 420 of IPC.
7. Being aggrieved by aforesaid order, the Accused No.2 filed
Cri. Rev. Appln. No. 108 of 2017 to the extent of joining him as Accused
No.2, whereas, the complainant filed Cri. Rev. Appln. No. 110 of 2022
challenging the order dated 01.08.2017 passed below Exh.54 to the
extent of refusal for addition of charge under u/s 420 r/w Sec. 34 of I.P.C.
8. On 7th August, 2023, the learned Additional Sessions Judge
passed the impugned judgment and order holding that in view of
allegations made in para 5 of the application (Exh.54), prima facie, it
(6) cri wp 1372.23
attracts the ingredients of offence punishable u/s 420 of IPC, as the
Accused No.1 deliberately issued the cheque from the account of his son
i.e. Accused No.2. Therefore, as per the view taken in case of Amol
Shripal Sheth V/s. Hari Om Trading Com.; 2014 (6) Mh. L.J. 222, the
offence punishable u/s 420 of IPC is also attracted. So also, in evidence of
the C.W. 3, Shri Rajkumar Sarda it has came on record that the subject
matter of cheque has not been issued from the account of the Accused
No.1 - Purushottam but said cheque was issued from the account of the
Accused No.2 - Ashish Purushottam Somani, the son of the Accused No.1.
Therefore, he has been rightly impleaded.
9. Mr. Sudarshan Salunke, the learned counsel appearing for the
Petitioners canvassed in vehemence that the Respondent/Complainant
has never issued mandatory notice u/s 138 of the NI Act to the Petitioner
No.2, therefore, for want of service of mandatory notice, the proceeding
u/s 138 of the NI Act is not maintainable as against the
Petitioner/Accused No.2. Therefore, said proceeding needs to be quashed
and set aside.
10. He further canvassed that, on 01.08.2017, the learned trial
Court passed an order below Exh. 54 thereby permitting the Respondent
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No.2/Complainant to add the Petitioner No.2 - Ashish Purushottam
Somani as Accused No.2, however, it declined to issue process as against
him for the offence punishable under Sec. 420 of IPC, therefore, the
learned Revisional Court rightly not permitted to alter the charge for the
offence punishable u/s 420 of IPC. Therefore, the impugned order dated
7th August, 2023 is illegal and bad in law.
11. The learned counsel for the Petitioners further canvassed that
Sec. 216 of Cri. P.C. provides for alteration or addition to any charge at
any time before the judgment is pronounced, however, such powers is
required to be exercised, if the evidence of witness suggest about
commission of offence other than the charge which is already framed,
however, the learned trial Court framed the charge for the offence u/s
138 of the NI Act, hence, there is no need to alter the charge. Therefore,
the impugned order passed by the Revisional Court needs to be quashed
and set aside.
12. Lastly, the learned counsel for the Petitioners canvassed that
while passing the impugned order the learned Revisional Court dismissed
the revision of the Petitioners with exemplary cost, though the Petitioners
(8) cri wp 1372.23
have opted for statutory remedy, therefore, prayed to quash the order of
cost.
13. To buttress these submissions, the learned counsel for the
Petitioners placed reliance on the case of N. G. Narayanswamy V/s. M/s.
Vijayanand Roadline Ltd.; 2001 Cri. l.J. 211, wherein the Karnataka High
Court held that the notice as contemplated under Sec. 138 (b) is not
issued to the drawer of the cheque within 15 days of receipt of
information by him from the bank regarding the return of cheque as
unpaid and notice to payee who endorsed the same to the holder in due
course, is no compliance of Sec. 138 (b) of the Act.
14. The learned counsel for the Petitioners further relied on case
of Vijay Kumar Ghai & Ors. V/s. State of West Bengal & Ors.; (2022) 2
SCC (Cri) 787, wherein the Hon'ble Supreme Court observed in para nos.
33 to to 38 as under:
"33. Section 420 IPC defines cheating and dishonestly inducing delivery of
property which reads as under: -
"420. Cheating and dishonestly inducing delivery of property. --Whoever
cheats and thereby dishonestly induces the person deceived to deliver any
property to any person, or to make, alter or destroy the whole or any part of a
valuable security, or anything which is signed or sealed, and which is capable
of being converted into a valuable security, shall be punished with
imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine."
(9) cri wp 1372.23
34. Section 420 IPC is a serious form of cheating that includes inducement
(to lead or move someone to happen) in terms of delivery of property as well as
valuable securities. This section is also applicable to matters where the
destruction of the property is caused by the way of cheating or inducement.
Punishment for cheating is provided under this section which may extend to 7
years and also makes the person liable to fine.
35. To establish the offence of Cheating in inducing the delivery of
property, the following ingredients need to be proved:-
(i). The representation made by the person was false
(ii) The accused had prior knowledge that the representation he made was
false.
(iii) The accused made false representation with dishonest intention in order
to deceive the person to whom it was made.
(iv) The act where the accused induced the person to deliver the property or
to perform or to abstain from any act which the person would have not done or
had otherwise committed.
36. As observed and held by this Court in the case of Prof. R.K.
Vijayasarthky & Anr. Vs. Sudha Seetharam & Anr., the ingredients to constitute
an offence under Section 420 are as follows:-
(i) a person must commit the offence of cheating under Section 415;
and
(ii) the person cheated must be dishonestly induced to;
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or
sealed and capable of being converted into valuable security. Thus,
cheating is an essential ingredient for an act to constitute an offence
under Section 420 IPC.
37. The following observation made by this Court in the case of Uma
Shankar Gopalika Vs. State of Bihar with almost similar facts and
circumstances may be relevant to note at this stage: (SCC pp.338-39, paras 6-7)
"6. Now the question to be examined by us is as to whether on the
facts disclosed in the petition of the complaint any criminal offence
whatsoever is made out much less offences under Section 420/120-B IPC.
The only allegation in the complaint petitioner against the accused person
( 10 ) cri wp 1372.23
is that they assured the complainant that when they receive the insurance
claim amounting to Rs. 4,20,000, they would pay a sum of Rs. 2,60,000 to
the complainant out of that but the same has never been paid. It was
pointed out that on behalf of the complainant that the accused fraudulently
persuaded the complainant to agree so that the accused persons may take
steps for moving the consumer forum in relation to the claim of Rs.
4,20,0000. It is well settled that every breach of contract would not give
rise to an offence of cheating and only in those cases of breach of contract
would amount to cheating where there was any deception played at the
very inception. If the intention to cheat has developed later on, the same
cannot amount to cheating. In the present case, it has nowhere been stated
that at the very inception that there was intention on behalf of the accused
person to cheat which is a condition precedent for an offence under 420
IPC.
"7. In our view petition of complaint does not disclose any criminal
offence at all much less any offence either under Section 420 or Section
120-B IPC and the present case is a case of purely civil dispute between
the parties for which remedy lies before a civil court by filing a properly
constituted suit. In our opinion, in view of these facts allowing the police
investigation to continue would amount to an abuse of the process of court
and to prevent the same it was just and expedient for the High Court to
quash the same by exercising the powers under Section 482 Cr.P.C which
it has erroneously refused."
38. There can be no doubt that a mere breach of contract is not in itself a
criminal offence and gives rise to the civil liability of damages. However, as held
by this court in Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr.,
the distinction between mere breach of contract and cheating, which is criminal
offence, is a fine one. While breach of contract cannot give rise to criminal
prosecution for cheating, fraudulent or dishonest intention is the basis of the
offence of cheating. In the case at hand, complaint filed by the Respondent No. 2
does not disclose dishonest or fraudulent intention of the appellants."
15. Per contra, Adv. S.L. Deshpande, the learned counsel
appearing for the Respondent No.2/Complainant supported the
impugned order and canvassed that the learned Additional Sessions Court
( 11 ) cri wp 1372.23
rightly held that both the Petitioners have prima facie cheated and
dishonestly issued the cheque in question and directed the learned trial
Court to frame the charge for the offence punishable u/s 420 of IPC and
converted from summons to warrant case. Therefore, findings recorded
by the learned Revisional Court are just and proper and no interference is
needed at the hands of this Court, hence, prayed for dismissal of the
petition with cost.
FINDINGS
16. Having regard to the rival submissions canvassed on behalf of
both the sides, I have gone through the record. It is a matter of record
that, initially, the Respondent No.2/Complainant instituted a complaint
bearing SCC No. 362 of 2015 (original SCC No. 140 of 2014) under Sec.
138 of the Negotiable Instruments Act claiming that on 15.12.2013, the
Accused No. 1 issued a Cheque bearing No. "465113" dated 31.02.2014
in his favour for an amount of Rs. 55,40,000/- drawn on Buldhana Urban
Co-operative Bank, Manwat Branch for repayment of price of 1008
quintal cotton @ Rs. 5,500/- per quintal. On 01.04.2014, he deposited
said cheque with his banker for encashment but said cheque was
dishonored for the reason 'Insufficient Fund' of drawer. Thereafter, on
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21.04.2014, he issued a mandatory notice by RPAD. The Accused No.1
was duly served with the said notice on 22.04.2014 but the
Petitioner/Accused No.1 neither replied to the said notice nor complied
the same. Therefore, the Petitioner/Accused No. 1 committed an offence
under Sec. 138 of the Negotiable Instrument Act.
17. It is a matter of record to mention here that on 21.05.2014,
the learned Judicial Magistrate F. C., Pathri passed an order below Exh.1
and issued process against the Accused No.1 for the offence punishable
u/s 138 of the N.I. Act. Accordingly, charge as against the Petitioner No.1
was framed for the said offence. In evidence of the C.W. 3, Shri Rajkumar
Sarda, Branch Manager, of Buldhana Urban Co-op., Bank, Manwat it was
first time revealed that the subject matter - cheque is not issued from the
account of the Petitioner No.1/Accused No. 1 but it was issued from the
account of the Accused No.2- Ashish Purushottam Somani, the son of the
Accused No.1. The Respondent No.2/Complainant made specific
averment that both father and son were in collusion at the time of
issuance of the cheque with mala fide intention of cheating the
Complainant because at the time of negotiations, the Accused No.1, his
wife and brother-in-law (i.e. brother in law of wife) who resides at
( 13 ) cri wp 1372.23
Ambad were present. Since the Respondent No.2 sold huge quantity of
cotton for the consideration and the Petitioner No. 1 handed over cheque
in question for payment of price of the cotton, therefore, there is a
presumption that the Petitioner No.1 issued said cheque to discharge the
legal debt and liability. However, said cheque was issued from the bank
account of the Petitioner No.2 for which the Complainant was not made
aware. Therefore, intention of the Petitioner No.1 certainly falls within
the ambit of definition of cheating as contemplated u/s 415 of I. P. C.,
which reads as under:
"Sec. 415. Cheating.--
Whoever, by deceiving any person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the person so
deceived to do or omit to do anything which he would not do or omit if he
were not so deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property, is said to
"cheat"."
18. On face of record it appears that the Petitioner No.2 was very
much aware of the fact regarding issuance of cheque from his account but
the Petitioners have not stated the ground that the Respondent No.2
/Complainant was made aware of the fact of issuance of cheque for
repayment of cotton price from the account of the Petitioner No.2.
Therefore, the Respondent No.2/Complainant being an innocent
( 14 ) cri wp 1372.23
agriculturist presumed that the said cheque was issued by the Petitioner
No.1/Accused No.1 and, therefore, there was no occasion to the
complainant to issue mandatory notice u/s 138 of N.I. Act to the
Petitioner No.2. If the complainant could have made aware the fact of
handing over the cheque in question by the Petitioner No.1 from the Bank
account of the Petitioner No.2 then in that event the Respondent No.
2/Complainant could have issued the mandatory notice u/s 138 of the NI
Act. Therefore, it clearly depicts that the intention of both the Petitioners
was to only issue the cheque for payment of price of cotton to the
Complainant and to deprive him from actual payment.
19. Needless to say that issuance of cheque in question from the
account of the Petitioner No.2 came to the knowledge of the Respondent
No.2 after he examined the C.W. 3, Shri Rajkumar Sarda, Branch
Manager, of Buldhana Urban Co-op., Bank, Manwat. Therefore, the
Respondent No. 2/Complainant filed Exh. 54 and prayed for impleading
the Petitioner No. 2 as Accused No.2 and framing of additional charge for
the offence punishable u/s 420 of IPC.
( 15 ) cri wp 1372.23
20. Sec. 216 of the code of 1973, provides for alteration,
modification of charge at any time before pronouncement of judgment,
which reads as under:
"Sec. 216 Court may alter charge:-
(1) Any Court may alter or add to any charge at any time before judgment
is pronounced.
(2) Every such alteration or addition shall be read and explained to the
accused.
(3) If the alteration or addition to a charge is such that proceeding
immediately with the trial is not likely, in the opinion of the Court, to prejudice
the accused in his defence or the prosecutor in the conduct of the case, the
Court may, in its discretion, after such alteration or addition has been made,
proceed with the trial as if the altered or added charge has been the original
charge.
(4) If the alteration or addition is such that proceeding immediately with
the trial is likely, in the opinion of the Court, to prejudice the accused or the
prosecutor as aforesaid, the Court may, either direct a new trial or adjourn the
trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the
prosecution of which previous sanction is necessary, the case shall not be
proceeded with until such sanction is obtained, unless sanction has been
already obtained for a prosecution on the same facts as those on which the
altered or added charge is founded."
21. Sec. 319 of Code of 1973, provides to proceed against other
persons appearing to be guilty of offence, which reads as under:
"319. Power to proceed against other persons appearing to be guilty of
offence:-
(1) Where, in the course of any inquiry into, or trial of, an offence, it
appears from the evidence that any person not being the accused has
committed any offence for which such person could be tried together with the
accused, the Court may proceed against such person for the offence which he
appears to have committed.
( 16 ) cri wp 1372.23
(2) Where such person is not attending the Court, he may be arrested or
summoned, as the circumstances of the case may require, for the purpose
aforesaid.
(3) Any person attending the Court, although not under arrest or upon a
summons, may be detained by such Court for the purpose of the inquiry into,
or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1),
then-
(a) the proceedings in respect of such person shall be commenced afresh, and
the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such
person had been an accused person when the Court took cognizance of the
offence upon which the inquiry or trial was commenced."
22. Therefore taking into consideration the provisions of Sec. 216
of Cri. P.C., it prima facie appears that adding to any charge is addition of
new charge and meaning of alteration of a charge is changing or variation
of an existing charge meaning thereby addition to and alteration of a
charge or charges implies one or more existing charge or charges as held
by Hon'ble Supreme Court in case of Sohanlal V/s. State of Rajasthan;
1990 SCC (Cri.) 650. Therefore, new charge can be added only if there is
material before the Court either in the complaint or in the evidence to
justify such action. However, for alteration of charge there should be
material either in the complaint or in the evidence.
( 17 ) cri wp 1372.23
23. In Amol Shripal Sheth V/s. Hari Om Trading Co.; 2014 (6)
Mh. L.J. 222, this Court has held that the Criminal Court has power to
proceed against a person other than the accused, if it appears from
evidence that other person not being accused has committed any offence
for which he needs to be tried in the case already before the Court. It has
observed in para 15 as under:
"15. Section 319 of Cr.P.C. shows that the Criminal Court has the power to
proceed against person other than the accused,if it appears from the evidence
that other person not being the accused, has committed any offence for which
he needs to be tried in the case already before the Court. In the case reported
as (2008) 9 SCC 140 [Bholu Ram Vs. State of Punjab and Anr.], the Apex
Court has laid down that the power given to Criminal Court under section 319
of Cr.P.C. is incidental and ancillary to main power given to Criminal Court to
take cognizance of the offence. It is observed that the power under section 319
of Cr.P.C. is a part of normal process in the administration of justice. The
power under section 319 is discretionary in nature. The observations of the
Apex Court and this provision of Cr.P.C. again show that the Magistrate takes
cognizance of the offence and not of the offender."
24. No doubt, the legal position is that it is not necessary that a
Complainant should verbatim reproduce in the body of his complaint all
the ingredients of the offence he is alleging. Nor it is necessary that the
complaint should state in so many words, the the intention of the accused
was dishonest or fraudulent state, as held by the Hon'ble Supreme Court
in case of Rajesh Baja V/s. State of Delhi; 1999 SCC (Cri.) 401.
( 18 ) cri wp 1372.23
25. In the case in hand, on 01.08.2017, the trial Court passed an
order and partly granted Exh.54 and permitted the Complainant to add
Ashish Purushottam Somani as the Accused No.2 but declined to issue
process as against the Accused No.2 for the offence punishable under Sec.
420 of IPC. On 7th August, 2023, the learned Additional Sessions Judge
passed the impugned judgment and order holding that in view of
allegations made in para 5 in Exh. 54 application, prima facie, ingredients
of offence punishable u/s 420 of IPC are attracted, as the Accused No.1
deliberately issued the cheque which has been drawn on the account of
his son i.e. Accused No. 2. Therefore, as per the view taken in case of
Amol Shripal Sheth V/s. Hari Om Trading Com.; 2014 (6) Mh. L.J. 222,
the offence punishable u/s 420 of IPC is attracted. So also, in evidence of
the C.W. 3 Shri Rajkumar Sarda, it has came on record that the subject
matter - cheque was not issued from the account of the Accused No.1-
Purushottam but the said cheque was issued from the account of the
Accused No.2- Ashish Purushottam Somani, the son of the Accused No.1.
Therefore, he has been rightly impleaded. Therefore, I do not find that
the findings recorded by the learned Revisional Court are perverse,
illegal.
( 19 ) cri wp 1372.23
26. Apart from above, the Petitioners challenged the impugned
order in respect of imposition of cost of Rs. 50,000/-. However, it is
submitted that on 15.12.2013, the Respondent No.2 - Agriculturist sold
1008 quintal cotton @ Rs. 5,500/- per quintal. The Petitioner No.1 had
agreed to pay price of cotton after three months. On 31.02.2014, the
Petitioner No.1 handed over a cheque bearing No. "465113" for an
amount of Rs. 55,40,000/- which has been dishonored and since the
Respondent No.2 was deprived from receiving payment of cotton.
Therefore, if said amount carries the rate of interest @ 12% per annum it
will be more than the amount of cost awarded by the learned Revisional
Court, which certainly appears justifiable and no bona fide grounds are
set out to interfere with the said findings.
27. In view of above discussion, the present petition is hereby
dismissed.
[Y.G. KHOBRAGADE, J.]
mub
