Prem Kumar Sahu vs The State Of Jharkhand
2023 Latest Caselaw 3130 Jhar

                                                            Cr. M.P. No.1473 of 2022




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No.1473 of 2022
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Prem Kumar Sahu, S/o Ishwar Sahu, aged about 47 years, R/o Govindpur, Karra, P.O. & P.S. - Jariyagarh, District- Khunti (Jharkhand) ... Petitioner Versus

1. The State of Jharkhand

2. Supriti Kumari, W/o.- Jaiprakash Jaisawal, R/o - Shivalaya Road, P.O., P.S. & Dist.- Khunti ... Opposite Parties

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             For the Petitioner            : Mr. Sidhartha Roy, Advocate
             For the State                 : Mr. Ravi Prakash, Spl. P.P.
             For the O.P. No.2             : Mr. Gaurav, Advocate
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                                       PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the

jurisdiction of this Court under Section 482 of the Code of Criminal Procedure

with a prayer to quash the F.I.R. as well as the entire criminal proceedings in

connection with Khunti P.S. Case No.137 of 2021 registered for the offences

punishable under Sections 406, 420 of the Indian Penal Code and Section 138 of

the N.I. Act, pending in the court of Chief Judicial Magistrate, Khunti.

3. The brief facts of the case is that the petitioner took a loan of

Rs.19,00,000/- from the complainant/informant; part of which was taken by

transferring the amount in the name of others and part of the same was

transferred to the account of the petitioner in the name of Maa Shanti

Enterprises. In December, 2020, the complainant/informant demanded back

her money. The petitioner issued a cheque for Rs.7,00,000/- of Bank of India in

Cr. M.P. No.1473 of 2022

the name of the complainant/informant and promised that the rest amount will

be paid by him by the end of February, 2021 and requested the

complainant/informant to deposit the cheque after a period of 15 day for

encashment of the same. The complainant/informant on 07.01.2021 deposited

the cheque in her bank account with Punjab National Bank but the cheque was

dishonoured as the petitioner issued stop payment instructions to his bank for

not honouring the said cheque. The petitioner, thereafter tendered apology and

promised to pay money within 15 days but even after that the petitioner did

not pay the said amount and ultimately on 31.01.2021 refused to pay the

amount. The complainant/informant issued the demand notice which was

received by the petitioner but even then the petitioner did not pay the said

amount. The complainant/informant filed Complaint Case No.26 of 2021 and

the same being forwarded to police by the Chief Judicial Magistrate, Khunti

under Section 156 (3) of Cr.P.C. for proper investigation; upon registration of a

case. Basing upon the same, Khunti P.S. Case No.137 of 2021 was registered for

the offences punishable under Sections 406, 420 of the Indian Penal Code and

Section 138 of the N.I. Act. After completion of the investigation, police

submitted charge-sheet against the petitioner for having committed the

offences punishable under Sections 406, 420 of the Indian Penal Code and

Section 138 of the N.I. Act.

4. Learned counsel for the petitioner submits that the complainant has

failed to satisfy that prior to filing of the complaint she took recourse of

provisions laid down under Section 154 (1) and 154 (3) of Cr.P.C. and in the

absence of the same the reference to police to register the F.I.R. under Section

156 (3) of Cr.P.C. is illegal. It is next submitted that since the cheque was not

Cr. M.P. No.1473 of 2022

issued in his personal capacity but in capacity of the proprietor of the firm in

the name and style of Maa Shanti Enterprises and Maa Shanti Enterprises has

not been arrayed as an accused, hence, the prosecution under Section 138 of

Negotiable Instrument Act cannot proceed. It is then submitted that the brother

of the informant has defalcated huge amount of money from the shop of the

petitioner and committed theft of various signed cheques from the petitioner's

firm. Hence, the petitioner gave information to the Bank, regarding the lost

cheque and lodged Sanha in the Police Station. The petitioner has also lodged

an F.I.R. regarding the misuse of the cheque by the informant vide Khunti P.S.

Case No.26 of 2022.

5. Learned counsel for the petitioner relies upon the judgment of the

Hon'ble Supreme Court of India in the case Sripati Singh (since deceased)

through his Son Gaurav Singh vs. The State of Jharkhand & Another

reported in (2021) 7 Supreme 508 paragraph-22 of which reads as under:-

"22. These aspects would prima-facie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent No. 2 was presented. On such cheque being dishonoured, cause of action had arisen for issuing a notice and presenting the criminal complaint under Section 138 of N.I. Act on the payment not being made. The further defence as to whether the loan had been discharged as agreed by respondent No. 2 and in that circumstance the cheque which had been issued as security had not remained live for payment subsequent thereto etc. at best can be a defence for the respondent No. 2 to be put forth and to be established in the trial. In any event, it was not a case for the Court to either refuse to take cognizance or to discharge the respondent No. 2 in the manner it has been done by the High Court. Therefore, though a criminal complaint under Section 420 IPC was not sustainable in the facts and circumstances of the instant case, the complaint under section 138 of the N.I Act was maintainable and all contentions and the defence were to be considered during the course of the trial." (Emphasis supplied)

Cr. M.P. No.1473 of 2022

6. It is next submitted that since it is a mere default in payment of loan

taken by the petitioner in time and in the absence of any allegation that the

petitioner has any intention to deceive the complainant/informant at the time

of taking loan, the offence punishable under Section 420 of the Indian Penal

Code is not made out. It is next submitted that similarly the offence punishable

under Section 406 of the Indian Penal Code is also not made out against the

petitioner. Hence, it is submitted that the F.I.R. as well as the entire criminal

proceedings in connection with Khunti P.S. Case No.137 of 2021 which is

pending in the court of Chief Judicial Magistrate, Khunti, be quashed and set

aside.

7. Learned Spl.P.P. appearing for the State and the learned counsel for the

opposite party No.2 vehemently oppose the prayer to quash the F.I.R. as well as

the entire criminal proceedings in connection with Khunti P.S. Case No.137 of

2021 registered for the offences punishable under Sections 406, 420 of the

Indian Penal Code and Section 138 of the N.I. Act, pending in the court of Chief

Judicial Magistrate, Khunti and submit that there is specific and direct

allegation against the petitioner for having committed the offence of cheating as

is evident from the conduct of the petitioner by issuing stop payment

instruction to the bank after issuing the cheque and the same amounts to the

intention of deception from the very beginning and as he has taken the money

and has not returned the same, hence, the offence punishable under Section 406

of the Indian Penal Code is made out against the petitioner. In respect of the

offence punishable under Section 138 of the Negotiable Instrument Act, learned

Spl.P.P. appearing for the State and the learned counsel for the opposite party

No.2 submit that the ratio of the judgment of the Hon'ble Supreme Court of

Cr. M.P. No.1473 of 2022

India in the case of Aneeta Hada vs. Godfather Travels and Tours Private

Limited reported in (2012) 5 SCC 661 is not attracted in this case because in this

case there is direct allegation against the petitioner that the petitioner took the

loan and the petitioner issued the cheque and all criminal acts were done by the

petitioner and merely he used the name of his proprietorship firm as name

lender and there is direct allegation against the petitioner of the petitioner

himself having committed the offence and there is provision of vicarious

liability in Negotiable Instrument Act, 1881. Therefore, in this case the

prosecution of the petitioner in respect of the offence punishable under Section

138 of the N.I. Act is not illegal. Hence, it is submitted that this Cr.M.P., being

without any merit, be dismissed.

8. Having heard the rival submissions made at the Bar and after going

through the materials available in the record, in view of the judgment of the

Hon'ble Supreme Court of India in the case of Sripati Singh (since deceased)

through his Son Gaurav Singh vs. The State of Jharkhand & Another (supra),

as merely because the petitioner has taken money and has not repaid the same,

in the absence of any specific allegation against him of having any intention to

deceive the complainant/informant at the time of taking money, the offence

punishable under Section 420 of the Indian Penal Code is not made out. In the

absence of any allegation of any dishonest misappropriation of the money

taken by the petitioner from the complainant/informant, the offence

punishable under Section 406 of the Indian Penal Code is not made out either.

9. So far as the contention of the petitioner that in the absence of the

proprietary firm of the petitioner having not been arrayed as an accused, the

entire criminal proceeding against the petitioner be quashed and set aside, is

concerned, it is pertinent to mention here that there is specific allegation against

Cr. M.P. No.1473 of 2022

the petitioner of committing all the criminal acts constituting the offence

punishable under Section 138 of the Negotiable Instrument Act, 1881 and

merely because he has used the name of his proprietary firm and the cheque

also bears the signature of the petitioner, under such circumstances, this Court

is of the considered view that not arraying the proprietorship firm with which

except the petitioner no one else is associated, is certainly not a valid reason to

quash and set aside the entire criminal proceeding so far as the offence

punishable under Section 138 of the Negotiable Instrument Act, 1881 is

concerned.

10. So far as the contention of the petitioner that the complainant did not

approach the police before lodging the complaint and there is no such

averment in the complaint is concerned, it is pertinent to mention here that the

provisions of Negotiable Instrument Act, 1881 envisages of a complaint to be

filed in case the cheque is dishonoured; if after issuing the demand notice, the

amount for which the cheque is issued, is not paid. In this case, the complainant

filed the complaint but besides the penal provisions of Section 138 of

Negotiable Instrument Act, 1881, she claimed that that the offence punishable

under Section 420, 406 of the Indian Penal Code is also made out.

11. As discussed above, this Court has already held that under the facts of

the case the offence punishable under Sections 406, 420 of the Indian Penal

Code is not made out. So, obviously the complaint upon being referred to

police under Section 156 (3) of Cr.P.C. by the court of Chief Judicial Magistrate,

Khunti is confined to the offence punishable under Section 138 of the

Negotiable Instrument Act, 1881 and for the compliance of approaching the

police as is envisaged under Section 154 (1) and 154 (3) of Cr.P.C. is not

Cr. M.P. No.1473 of 2022

necessary, in respect of the offence punishable under section 138 of the

Negotiable Instruments Act. Under such circumstances, this Court is of the

considered view that the complainant/informant not approaching the police

before filing the complaint will not be of any disadvantage to her, nor make the

case, fatal.

12. In view of the discussions made above, it is made clear that the F.I.R. as

well as the entire criminal proceedings in connection with Khunti P.S. Case

No.137 of 2021 which is pending in the court of Chief Judicial Magistrate,

Khunti will be limited to the complaint under Section 138 of the Negotiable

Instrument Act, 1881 and the trial court will proceed in accordance with law.

13. This Cr.M.P. stands disposed of with the aforesaid modification only.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 24th of August, 2023 AFR/ Animesh