Calcutta High Court (Appellete Side)
Laxman Prasad Agarwal @ Laxhman ... vs The State Of West Bengal & Anr on 6 July, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ajoy Kumar Mukherjee
C.R.R. 3196 of 2019
Laxman Prasad Agarwal @ Laxhman Prasad Agarwala
-vs-
The State of West Bengal & Anr.
For the Petitioner : Mr. Ranadeb Sengupta
Mr. Sachit Talukdar
For the State : Mr. Swapan Banerjee
Ms. Purnima Ghosh
Heard on : 24.6.2022
Judgment on : 06.07.2022
Ajoy Kumar Mukherjee, J.
1. The present revisional application has been directed for quashing the
impugned proceeding being G.R. Case No.448 of 2019 arising out of Jorasanko
Police Station Case No.89 of 2019 dated April 15, 2019 under Sections
420/406 of the Indian Penal Code pending before the Court of learned
Additional Chief Metropolitan Magistrate, Calcutta.
2. The petitioner has contended in his revisional application that the
petitioner is the sole proprietor of "Pannalal Mahabir Prasad". The opposite
party no.2 has been doing business with the petitioner for a considerable
period of time. There were monetary transactions between the petitioner and
the opposite party no.2 and accordingly, the petitioner used to make regular
payment and provide requisite returns to the opposite party no.2 on regular
interval. In course of time, petitioner's business faced financial setbacks and
he was in urgent need of financial assistance and as such, he approached the
opposite party no.2 with a request to grant him loan of Rs.30 lakhs for
enabling him to revive to his plunging business.
3. The opposite party no.2 had taken into consideration the said proposal
and due to good business relationship he afforded the said loan through RTGS
on November 2, 2017 from Indian Overseas Bank, Lalbazar Branch to the
petitioner's account of Yes Bank, Burrabazar Branch. The said loan was
accommodated with a condition that the petitioner would repay the sum within
a period of 91 days from the date of issuance of the sum and he will pay
interest at the rate of 15% per annum in case of failure to repay within the
stipulated period.
4. The petitioner in discharging his liabilities towards the opposite party
no.2 had issued an account payee cheque bearing no.791236 dated June 2,
2018 to the tune of Rs.30 lakhs in favour of the opposite party no.2 drawn on
Yes Bank Limited and at the time of issuance of cheque the petitioner had
requested the opposite party no.2 not to place the same for encashment
immediately as his business is yet to be recovered from the downfall.
5. On September 12, 2018 the opposite party no.2 placed the said cheque
for encashment with his banker and the opposite party no.2 came to know that
his cheque has been dishonoured as the signature of the drawer differs.
Thereafter, on October 6, 2018 the opposite party no.2 started a proceeding
under Section 138 of the Negotiable Instruments Act which has been registered
as Complaint Case No.97961 of 2019 and the said complaint case is pending
for evidence. During pendency of the aforesaid proceeding under Section 138
of the Negotiable Instruments Act, the opposite party no.2 on April 13, 2019
had lodged a complaint against the petitioner alleging that the petitioner has
cheated and misappropriated a sum of Rs.30 lakh obtained as a loan from the
opposite party no.2.
6. In the FIR being Jorasanko Police Station Case No.89 of 2019 dated April
15, 2019 under Sections 420/406 of the Indian Penal Code, the opposite party
no.2 alleged that the petitioner had requested him for accommodating a loan of
Rs.30 lakh and the opposite party no.2 accordingly issued the loan in favour of
petitioner due to cordial relationship and in order to repay the loan, the
petitioner had issued a cheque being no.791823 dated February 1, 2018 to the
tune of Rs.30 lakh.
7. It is further alleged that after being receipt of the loan, petitioner
gradually started to avoid phone calls of the opposite party no.2 and also
stopped personal visit. Opposite party no.2, sensing something wrong, visited
petitioner personally and requested him to make repayment and accordingly,
the opposite party no.2 had also asked petitioner to issue a fresh cheque as an
earlier one was about to expire. Accordingly, the petitioner issued another
cheque being no.791236 dated July 2, 2018 in favour of the opposite party
no.2 but the said cheque was returned dishonoured as the signature of the
drawer differed.
8. Mr. Ranadeb Sengupta, learned counsel for the petitioner, submits that
the complaint lodged by opposite party no.2 was filed after seven months from
the date of dishonour of the cheque without giving any cogent explanation
whatsoever regarding such delay and thereby makes it clear that the same was
an afterthought and merely a harassing measure adopted by opposite party
no.2.
9. Mr. Sengupta further submits that on a plain reading of the complaint
filed by the opposite party no.2, it is clear that the same is merely counterblast
to the petitioner's inability to make complete payment and the alleged
complaint lodged by opposite party no.2 is out of sheer malice by adding colour
of criminality to an issue which involves partial non-performance of business
obligations. The complaint has been filed to tarnish the reputation of the
petitioner and his company in the business circle and the allegation does not
at all constitute an offence punishable under Section 420 of the Indian Penal
Code because in order to attract Section 420 of the Indian Penal Code the
intention to deceive must be from the very beginning and a mere inability of a
person to repay a portion of the sum advanced to him during business
transaction would not constitute an offence under Section 420 of the Indian
Penal Code.
10. Mr. Sengupta further argued that the allegations leveled in the FIR suffer
from antagonistic contradictions and inherent absurdity. Even if the allegation
taken to be true, it does not make out any cause of action giving rise to
initiation of an investigation under Chapter XII of the Code of Criminal
Procedure. He further submits that in the complaint itself it has been stated
that the cheque was dishonoured because of mismatch of the drawer's
signature. Therefore, the whole story of deception and misappropriation of
fund is completely concocted.
11. Further argument advanced that appropriate remedy lies in the
proceeding initiated by opposite party no.2 under Section 138 of the Negotiable
Instruments Act and as such, the present complaint is required to be quashed
at its threshold. Practically, the opposite party no.2 has roped the petitioner in
a criminal case without attributing any specific role against the petitioner in
the alleged offence and the same has been done solely for the purpose of
settling the dispute.
12. In this context, Mr. Sengupta relied upon the case laws reported in
2006(3) CHN 784 in the case of Tapan Kumar Ghosh and Ors. Vs. State of
West Bengal & Anr. and in the case of Sripati Singh (since deceased)
through his son Gourav Singh Vs. State of Jharkhand & Anr. reported in
(2021) SCC OnLine SC 1002.
13. Mr. Madhusudan Sur, learned counsel for the State submits that on the
basis of complaint lodged by opposite party no.2, investigation started and the
proceeding should not be quashed at its threshold simply because a
proceeding under Section 138 of the Negotiable Instruments Act is pending
against the petitioner.
14. Considered rival submissions. It is now well-settled that in case of
offence relating to dishonour of cheque, there is no bar to proceed
simultaneously under Section 138 of the Negotiable Instruments Act as well as
under Section 420 of the Indian Penal Code
15. In Sangeetaben Mahendrabhai Patel Vs. State of Gujarat & another
reported in (2012) 7 SCC 621 Apex Court was pleased to observe as follow:
"27. Admittedly, the appellant had been tried earlier for the offences
punishable under the provisions of Section 138 N.I. Act and the case
is sub judice before the High Court. In the instant case, he is involved
under Sections 406/420 read with Section 114 IPC. In the
prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or
dishonest intention at the time of issuance of cheque is not required to
be proved. However, in the case under IPC involved herein, the issue
of mens rea may be relevant. The offence punishable under Section
420 IPC is a serious one as the sentence of 7 years can be imposed.
In the case under N.I. Act, there is a legal presumption that the
cheque had been issued for discharging the antecedent liability and
that presumption can be rebutted only by the person who draws the
cheque. Such a requirement is not there in the offences under IPC. In
the case under N.I. Act, if a fine is imposed, it is to be adjusted to
meet the legally enforceable liability. There cannot be such a
requirement in the offences under IPC. The case under N.I. Act can
only be initiated by filing a complaint. However, in a case under the
IPC such a condition is not necessary".
"28. There may be some overlapping of facts in both the cases but
ingredients of offences are entirely different. Thus, the subsequent
case is not barred by any of the aforesaid statutory provisions".
16. The opposite party no.2 has specifically alleged in his FIR, when the
cheque was returned as dishonoured, he requested the petitioner on various
occasions for making repayment but the petitioner was trying to avoid his
phone calls and also stopped visiting him. It is true that signature of a person
may differ for many reasons, like sickness state of mind, old age and some
more reasons. It is equally true that in order to constitute an offence under
Section 420 of the Indian Penal Code mens rea i.e. guilty mind is required to be
proved. If in the present case it was a simplicitor case of differing signature of
the drawer appearing on the cheque due to innocence and if the drawer had
bona fide intention to make payment, he could have made payment after
receipt of notice in order to discharge his admitted liability, instead of avoiding
opposite party no.2, as alleged in the complaint. Accordingly, the mens rea has
to be gathered from the facts and circumstances of the case and not from a
mere statement that there was all along good relationship and for which there
cannot be any mala fide intention from the very beginning in taking loan or
issuing cheque, where signature got differed.
17. Admittedly in the present case petitioner took loan of Rs. 30,00,000/-
from opposite party no.2/ complainant. Petitioner also not denied specifically
that he had given the impugned cheque to opposite party no. 2 towards
repayment of debt. Documents transpire that impugned cheque got
dishonoured on the ground "Drawer's signature differs".
18. In this context, it is to be mentioned that the drawer of the cheque will
have to take abundant precaution while issuing the cheque, so that the cheque
should be honoured and contracted obligations are fulfilled. If the drawer
intentionally tampers with the cheque, the cheque with difference in signature,
will be definitely returned. In the present case even after service of statutory
notice, the amount involved in the cheque are not paid by the petitioner. In
such circumstances, petitioner will have to explain that tampering of cheque if
any, was not made with any oblique motive. The mens rea behind issuing such
cheque will have to be determined based on the material to be collected during
the course of trial. Even if during trial accused take the plea that the signature
appearing in the cheque in question was not put by him, it is for the accused
to prove the said fact specifically when specific plea of complainant is that the
accused issued the cheque to discharge his liability. Therefore, it is for the
accused to explain as to how the cheque in question which pertained to his
account bearing his incomplete signature reached in the possession of the
complainant. Fair trial includes fair and proper opportunities allowed by law
to prove innocence of the petitioner.
19. In this context I am inclined to refer relevant portion of the statutory
judgment of Apex Court in State of Haryana Vs. Bhajan Lal reported in
(1992) SCC (Cri) 426 to understand whether this is a fit case where power
under section 482 of the code can be invoked, relevant portion of the judgment
dealing with the cases where such power can be invoked is reproduced below:-
"102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases by way
of illustration wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint
and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation
is permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd
and inherently improbable on the basis of which no prudent person
can ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal
proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge".
"103. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly
and with circumspection and that too in the rarest of rare cases; that
the court will not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or inherent powers do
not confer an arbitrary jurisdiction on the court to act according to its
whim or caprice".
20. In view of the above facts and circumstances of the case and discussion
made above, as the materials available so far discloses prima facie offence
against the present petitioner, it would not be proper to quash the proceeding
at its threshold exercising power under Section 482 of the Code.
21. The case law cited on behalf of the petitioner, in the case of Sripati
Singh (supra) is not applicable in the present case as in the said case there
was an assurance of repayment and based on such assurance the appellant
presented the cheque for realization but the cheque got dishonoured on the
ground of insufficient fund. Accordingly, it was a clear case which attracted
Section 138 of the Negotiable Instruments Act but in the present context, it is
not a case of dishonoured cheque on the ground of insufficient fund rather the
cheque was dishonoured as the signature of the drawer differs and no
explanation offered on behalf of the petitioner as to why his signature got
differed in the impugned cheque and no attempt was made on his behalf to
make payment of admitted loan amount in spite of several requests made by
the opposite party no.2 and no attempt has also been made to show that he
did not have any dishonest intention in issuing the cheque as he had sufficient
fund in his account or there is no dishonest intention at the time of taking loan
and all these factors prima facie constitutes mens rea for the offence and to
prove or disprove the same the trial is required to be conducted.
22. The other case cited by the petitioner, Tapan Kumar Ghosh and Others
(supra) is also not applicable because in that case court held that there is no
doubt that prima facie element of Section 138 attracted and there was nothing
to show that any inducement or fraudulent or dishonest intention on the part
of the accused person was there right from the beginning of the transaction
which is not the case in the present context as discussed above.
23. In view of the above, prayer for quashing the proceeding being G.R. Case
No.448 of 2019 arising out of Jorasanko Police Station Case No.89 of 2019
dated April 15, 2019 under Sections 420/406 of the Indian Penal Code
pending before the Court of learned Additional Chief Metropolitan Magistrate,
Calcutta is considered and dismissed.
24. CRR 3196 of 2019 is accordingly dismissed.
However, there shall be no order as to costs.
Urgent photostat certified copies of this order may be delivered to the learned
Advocates for the parties, if applied for, upon compliance of all formalities.
(AJOY KUMAR MUKHERJEE, J.)
