Jharkhand High Court
Deepak Kumar Lal And Others vs The State Of Jharkhand And Another on 13 July, 2023
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IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 3222 of 2017
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Deepak Kumar Lal and Others .... Petitioners
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. A.K. Kashyap, Sr. Advocate
For the State :- ----
For the O.P.no.2 :- Mr. Surendra Prasad Sinha, Advocate
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4/13.07.2023 Heard Mr. A.K. Kashyap, learned Senior counsel appearing
on behalf of the petitioners and Mr. Surendra Prasad Sinha, the learned
counsel appearing on behalf of the respondent State.
2. This petition has been filed for quashing of the entire
criminal proceeding including the order taking cognizance dated
21.03.2017 in connection with Town P.S.Case No.317 of 2016, G.R. Case
No.2184 of 2016, pending in the court of learned Chief Judicial
Magistrate, Palamau at Daltonganj.
3. The complaint case was filed alleging therein that the
prosecution case has been initiated on the complaint lodged by the
Complainant/Informant (O.P. No. 2 herein) in the court of the learned
Chief Judicial Magistrate, Palamau at Daltonganj, which was registered as
Complaint Case No. 295/2016 and the same was sent for registration of
F.I.R. u/s 156(3) of the Cr.P.C. and the same was registered as Town P.S.
Case No. 316/2016 u/s 323, 379/34 of the Indian Penal Code.
The allegation has been alleged in the said complaint by the
O.P. No. 2 that the accused/petitioners is of same caste and there has
been business term between them from before. The accused Ashutosh
Kumar Lal is the son of Deepak Kumar Lal and the accused Sobrati Ansari
is the staff of Deepak Kumar Lal.
It has been further alleged that in June 2013 the accused
Deepak Lal had given a loan of Rs. 7 Lacs through cheque to the
Complainant/ Informant and had taken two undated cheques for Rs. 7
Lacs and 3 Lacs respectively as security, saying that when the loan of Rs.
7 Lacs would be returned to the accused, then he would return both the
undated cheques to the Complainant/Informant.
It has been further alleged that the business term was
going on between the Complainant/ Informant and the accused Deepak
Lal and the capital of the Complainant/Informant invested in the business
of liquor of Deepak Lal and Rs. 8,30,000/- was deposited with the
accused Deepak Lal regarding which the accused has requested to adjust
Rs. 8,30,000/- in the amount of loan and to return both the undated
cheques, upon which the accused Deepak Lal had given the accounts of
transactions in writing to the Complainant/Informant from which it is
demanding Rs. 17,10,339/- adding the interest of 5% per month till April
2014 and after deducting Rs. 8,30,000/-, the demand of Rs. 13,65,000/-
was made till January, 2015 adding 5% interest. The Complainant/
Informant (O.P. No. 2 herein) showed his inability to make payment of
the said amount and demanded both the undated cheques which were
not given by the accused.
It has been further alleged that the accused Deepak Lal had
filed a case before the court below on the basis of both the cheques. In
the meantime Panchayati was held but the dispute was not settled. The
Complainant/Informant received a notice regarding issuance of cheque
of Rs. 7 Lacs and 3 Lacs, thereafter the accused told him that the matter
will be settled and for the same the dated 13.3.2016 was fixed to sit in
the house of Raj Karan Pandey to obey the verdict of Panch.
The complainant/Informant further alleged that on
13.3.2016 at about 12.00 noon he went to the house of Raj Karan
Pandey for panchayati where the accused and witnesses were present.
The accused told that he would withdraw the amount but after seeing
the written account upon which the complainant/informant gave him the
written account, which was given to Ashutosh Lal by the accused
Deepak Lal. Thereafter the complainant/informant asked for the
documents then all the three accused persons assaulted the
complainant/informant and took out Rs. 5,000/- from the pocket of the
complainant and due to intervention of the witnesses and other persons,
the complainant/informant was saved and the accused persons gave
threatening. The complainant/informant went to the police station to
inform the police but the police did not register the case and gave
assurance to the complainant that the amount and the document of
transactions would be returned to the complainant, but no action was
taken by the police. Thereafter the complaint was lodged, which was sent
u/s 156(3) of the Cr.P.C. for registration of F.I.R. and thereafter the
present F.I.R. was registered on 8.11.2016.
4. Mr. Kashyap, the learned Senior counsel appearing on
behalf of the petitioners submits that the charge sheet has been
submitted and thereafter the learned court has taken cognizance under
section 341, 323, 504 and 34 of the I.P.C. He further submits that the
complainant /informant has taken loan from the petitioner no.1 which
was duly paid by the petitioner no.1 to the complainant and assurance
was given by the complainant that he will return the loan amount and
given two cheques of Rs.7 lacs and Rs.3 lacs dated 10.3.2015 and
25.3.2015, respectively, payable at Redma, Daltonganj. He submits that
both the cheques were deposited to the bank by the petitioner no.1 but
the cheques were dishonoured by the bank and thereafter the notices
were issued to the complainant/ informant under the relevant provisions
of the Negotiable Instruments Act, 1881 for initiating the proceeding
under section 138 of the said Act and both the cases registered as
Complaint Case No.521 of 2015 under section 138 of the said Act and
Complaint Case No.583 of 2015 under section 138 respectively. He
submits that in both the cases cognizance has been taken by the learned
court on 27.7.2015 and the summon has been issued to the complainant.
He further submits that in one of the complaint case being Complaint
Case No.583 of 2015, the O.P.No.2 has already been convicted. He
submits that earlier the case was sent to the police for investigation of
the case under section 202 Cr.P.C and the police submitted report as
contained in Annexure-2 (page no.31) wherein it has been disclosed that
the case is falsely lodged against the petitioners. He further submits that
the learned court has taken cognizance without applying its judicial mind.
On these grounds, he submits that the entire criminal proceeding may
kindly be quashed.
5. Mr. Sinha, the learned counsel appearing on behalf of the
O.P.No.2 submits that the case is made out and the learned court has
taken cognizance thereafter the charge has been framed and this Court
may not interfere at this stage. He further submits that in terms of
paragraph no.8 of the complaint, it is crystal clear that the case is arising
out of dispute between the parties for commercial transactions and the
money transaction is there and that is why the case is made out.
6. In view of the above submission of the learned counsel
appearing on behalf of the parties, the Court has gone through the
materials on record and finds that the complaint case was sent to the
police under section 202 Cr.P.C and by way of Annexure-2 the police has
submitted the charge sheet and the learned court has taken cognizance.
The Court further finds that in the order taking cognizance, the word
'cognizance' has been filled up in the blank space which suggest that
there is non-application of judicial mind in passing of such order. It is an
admitted fact that for dishonour of two cheques the petitioners have filed
the two cases under section 138 of Negotiable Instrument Act as
Complaint Case No. 521/2015 and Complaint Case No. 583/2015 and in
one of the case, in Complaint Case No. 583/2015 the O.P.No.2 has been
convicted. Further if the O.P.No.2 himself has submitted that the case is
arising out of commercial transaction and there are business terms
between the parties. Accepting the argument of the learned counsel for
the O.P.No.2 if such a situation was there, the remedy is elsewhere and
for that criminality is not made out. It appears that maliciously the
present case is filed and further the High Court is not precluded for
passing any order under section 482 Cr.P.C if even the case is proceeded
further before the learned court. A reference may be made to the case of
Anand Kumar Mahatha v. State (N.C.T. Delhi), (2019) 11 SCC
706. Paragraph no.14 and 16 of the said judgment are quoted below:
"14. First, we would like to deal with the submission of the
learned Senior Counsel for Respondent 2 that once the charge-sheet
is filed, petition for quashing of FIR is untenable. We do not see any
merit in this submission, keeping in mind the position of this Court
in Joseph Salvaraj A. v. State of Gujarat [Joseph Salvaraj A. v. State of
Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23] . In Joseph Salvaraj
A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3
SCC (Cri) 23] , this Court while deciding the question whether the
High Court could entertain the Section 482 petition for quashing of
FIR, when the charge-sheet was filed by the police during the
pendency of the Section 482 petition, observed : (SCC p. 63, para 16)
"16. Thus, from the general conspectus of the various sections
under which the appellant is being charged and is to be prosecuted
would show that the same are not made out even prima facie from
the complainant's FIR. Even if the charge-sheet had been filed, the
learned Single Judge [Joesph Saivaraj A. v. State of Gujarat, 2007 SCC
OnLine Guj 365] could have still examined whether the offences
alleged to have been committed by the appellant were prima facie
made out from the complainant's FIR, charge-sheet, documents, etc.
or not."
16. There is nothing in the words of this section which restricts
the exercise of the power of the Court to prevent the abuse of
process of court or miscarriage of justice only to the stage of the FIR.
It is settled principle of law that the High Court can exercise
jurisdiction under Section 482 CrPC even when the discharge
application is pending with the trial court [G. Sagar Suri v. State of
U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh
Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri)
338 : (2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold
that proceedings initiated against a person can be interfered with at
the stage of FIR but not if it has advanced and the allegations have
materialised into a charge-sheet. On the contrary it could be said
that the abuse of process caused by FIR stands aggravated if the FIR
has taken the form of a charge-sheet after investigation. The power
is undoubtedly conferred to prevent abuse of process of power of
any court."
7. Paragraph no.15 of the judgment in the case of "Satish
Mehra v. State (NCT of Delhi), (2012) 13 SCC 614 is quoted below:
"15. The above nature and extent of the power finds an
exhaustive enumeration in a judgment of this Court in State of
Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 :
AIR 1977 SC 1489] which may be usefully extracted below: (SCC pp.
702-03, para 7)
"7. The second limb of Mr Mookerjee's argument is that in any
event the High Court could not take upon itself the task of assessing
or appreciating the weight of material on the record in order to find
whether any charges could be legitimately framed against the
respondents. So long as there is some material on the record to
connect the accused with the crime, says the learned counsel, the
case must go on and the High Court has no jurisdiction to put a
precipitate or premature end to the proceedings on the belief that
the prosecution is not likely to succeed. This, in our opinion, is too
broad a proposition to accept. Section 227 of the Code of Criminal
Procedure, 2 of 1974, provides that:
***
This section is contained in Chapter XVIII called 'Trial Before a
Court of Session'. It is clear from the provision that the Sessions
Court has the power to discharge an accused if after perusing the
record and hearing the parties he comes to the conclusion, for
reasons to be recorded, that there is not sufficient ground for
proceeding against the accused. The object of the provision which
requires the Sessions Judge to record his reasons is to enable the
superior court to examine the correctness of the reasons for which
the Sessions Judge has held that there is or is not sufficient ground
for proceeding against the accused. The High Court therefore is
entitled to go into the reasons given by the Sessions Judge in support
of his order and to determine for itself whether the order is justified
by the facts and circumstances of the case. Section 482 of the New
Code, which corresponds to Section 561-A of the Code of 1898,
provides that:
***
In the exercise of this wholesome power, the High Court is
entitled to quash a proceeding if it comes to the conclusion that
allowing the proceeding to continue would be an abuse of the
process of the court or that the ends of justice require that the
proceeding ought to be quashed. The saving of the High Court's
inherent powers, both in civil and criminal matters, is designed to
achieve a salutary public purpose which is that a court proceeding
ought not to be permitted to degenerate into a weapon of
harassment or persecution. In a criminal case, the veiled object
behind a lame prosecution, the very nature of the material on which
the structure of the prosecution rests and the like would justify the
High Court in quashing the proceeding in the interest of justice. The
ends of justice are higher than the ends of mere law though justice
has got to be administered according to laws made by the
legislature. The compelling necessity for making these observations
is that without a proper realisation of the object and purpose of the
provision which seeks to save the inherent powers of the High Court
to do justice between the State and its subjects, it would be
impossible to appreciate the width and contours of that salient
jurisdiction."
8. In view of the above facts, reasons and analysis, the Court
comes to the conclusion that this is a malicious proceeding against the
petitioners and further to allow the proceeding to continue, will amount
to abuse of the process of law.
9. Accordingly, the entire criminal proceeding including the
order taking cognizance dated 21.03.2017 in connection with Town
P.S.Case No.317 of 2016, G.R. Case No.2184 of 2016, pending in the
court of learned Chief Judicial Magistrate, Palamau at Daltonganj is
quashed.
10. This petition is allowed and disposed of.
11. Pending petition if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/,
