Calcutta High Court (Appellete Side)
Amishek Kumar Singh vs The State Of West Bengtal on 7 February, 2022
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Bibhas Ranjan De
C.R.M. (A) 567 OF 2022
Amishek Kumar Singh
VS.
THE STATE OF WEST BENGTAL
For the petitioner : Mr. Sourav Chatterjee
Mr. Avik Ghatak
Mr. S. Nag
Mr. A. Rakshit
For the de-facto : Mr. Sabir Ahmed
For the State : Mr. Rudradipta Nandy
Mr. Antarikhya Basu
Heard on : February 7, 2022
Judgment on : February 7, 2022
DEBANGSU BASAK, J.:-
1.
Petitioner seeks bail.
2. Learned advocate appearing for the petitioner submits
that, it is alleged that the petitioner did not pay the amount
involved in two dishonoured cheques dated May 11, 2016 and
May 15, 2016 valued at Rs.10,00,000/-. He draws the
attention of the Court to the provisions of Sections 138, 143A
and 148 of the Negotiable Instruments Act, 1881 (Act of 1881).
He submits that, the de-facto complainant did not issue any
notice within thirty days of the date of dishonour of cheques
as required under the Act of 1881. At best, the de-facto
complainant is entitled to compensation of 20 per cent of the
value of the two cheques. He relies upon (2011) 13 SCC 412
(Thermax Limited & Ors. Vs. K. M. Johny & Ors.) and
submits that, the de-facto complainant is seeking to
circumvent the civil proceedings. The claim of the de-facto
complainant is barred by limitation so far as Civil Courts are
concerned. He draws the attention of the Court to the fact
that, First Information Report (FIR) was lodged on January 11,
2022 in respect of two cheques dishonoured in 2016. He
relies upon (2014) 2 SCC 1 (Lalita Kumari Vs. Government
of Uttar Pradesh & Ors.) and submits that, the FIR does not
disclose commission of a cognizible offence. In any event,
given the abnormal delay in initiating the criminal complaint
and given the fact that the de-facto complainant did not
satisfactorily explain the reasons for the delay, a preliminary
inquiry should be made. According to him, none of the
ingredients under Sections 420 and 406 of the Indian Penal
Code (IPC) stands satisfied. The de-facto complainant did not
lodge any complaint contemporaneously.
3. Learned advocate appearing for the State submits that,
FIR was lodged on January 11, 2022. He draws the attention
of the Court to the contents in the case diary. He submits
that, the petitioner changed his residence and mobile phone
numbers frequently. He submits that, two notices under
Section 41A of the Code of Criminal Procedure (Cr.P.C.) were
issued to the petitioner and that the petitioner did not respond
thereto.
4. Learned advocate appearing for the de-facto complainant
submits that, the petitioner is a friend of the de-facto
complainant. After dishonour of the cheques, the petitioner
used to assure the de-facto complainant that payments would
be made in due course. The de-facto complainant was made
to wait by the petitioner from lodging any police complaint or
initiating any proceedings for recovery. Lastly, when the de-
facto complainant found that the petitioner changed his
address and his mobile phone numbers also and after much
difficulty when the de-facto complainant found out about him,
the police complaint was lodged. According to him,
ingredients of Sections 420 and 406 of the IPC stands
satisfied. Section 406 of the IPC is a continuing offence.
5. In reply, learned advocate appearing for the petitioner
submits that, the petitioner received only one 41A Cr.P.C.
notice and that the petitioner could not respond thereto as the
petitioner was unwell at that material point of time.
6. There is a FIR alleging that the petitioner defrauded and
cheated the de-facto complainant for a sum of Rs.10,00,000/-.
The petitioner also changed his residence and mobile phone
number in order to avoid such payment.
7. The materials in the case diary discloses that, the
petitioner received a sum of Rs.10,00,000/- in aggregate from
the de-facto complainant through NEFT payment, cheque
payment and cash payment. It is the case of the petitioner
that the petitioner issued two cheques dated May 11, 2016
and May 15, 2016 aggregating to a sum of Rs.10,00,000/- and
that those two cheques were dishonoured them. It is the case
of the petitioner that in view of the provisions of the Act of
1881 and the two authorities of the Supreme Court as cited on
his behalf, the prayer for anticipatory bail should be granted.
8. The two cheques are admittedly of 2016 with no notice
under Section 138 of the Act of 1881 being placed on record.
9. In Thermax Limited (supra), the Supreme Court
considered an appeal directed against the order of the Division
Bench of the High Court dismissing the writ petition filed by
the Thermax Limited as being misconstrued. Noticing the fact
that there were disputes with regard to the liability to pay by
Thermax Limited with such company not having any intention
of not paying, in the facts of that case, the Supreme Court
quashed the criminal complaint. The Supreme Court also
noted the fact that the complaint was belatedly lodged in the
year 2002 in respect of disputes pertaining to the period from
1993 to 1995. The disputes relate to purchase orders with the
liability of Thermax Limited yet to be determined. In the facts
of the present case, it cannot be said that there were disputes
between the private parties with regard to the quantum
involved.
10. In Lalita Kumari (supra), the Supreme Court is of the
view that where information received does not disclose
cognizable offence a preliminary inquiry may be conducted. In
the facts of the present case, the police complaint lodged by
the de-facto complainant against the petitioner, in substance,
cannot be said not to disclose commission of a cognizable
offence. Section 406 of the IPC is a continuing offence. It
cannot be said with any certitude that there is no dishonest
intention of the petitioner to deceive the de facto complainant.
11. In such circumstances, considering the gravity of the
offence and the involvement of the petitioner therein and
considering the fact that the petitioner did not respond to the
notices issued under Section 41A Cr.P.C., the requirement of
the prosecution for custodial interrogation of the petitioner
cannot be ruled out.
12. In such circumstances, we are unable to grant
anticipatory bail to the petitioner as prayed for. CRM (A) 567 of
2022 is rejected.
(Debangsu Basak,J.)
I agree.
(Bibhas Ranjan De, J.)
