Kamla Pathak vs The State Of Jharkhand And Another
2023 Latest Caselaw 4238 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 3099 of 2013

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      Kamla Pathak                                   .... Petitioner
                               --   Versus     --
      The State of Jharkhand and Another             .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Petitioner       :-     Mr. Chandrajit Mukherjee, Advocate
       For the State            :-     Mr. A.P. Topno, Advocate
       For the O.P.No.2         :-     Md. Asghar, Advocate
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5/09.11.2023        Heard the learned counsel for the petitioner, learned

counsel for the respondent State and the learned counsel appearing on

behalf of the O.P.No.2.

2. This petition has been filed for quashing of the entire

criminal proceeding in connection with C/1 Case No.1798 of 2012

including the order dated 08.03.2013, pending before learned Judicial

Magistrate, Ranchi.

3. The complaint case was filed alleging therein that the

complainant Sahim @ Sayeem Hussain filed a complaint before the

learned Court below against the petitioner and one Mansoor Hussain and

Karsh Mirdha, stating and alleging therein that one partnership deed was

executed between the complainant one hand and all the three accused

on the other hand including one Virendra Kumar Pandey for executing

construction work of five check dams worth Rs.1,07,00,000/- (One crore

seventy lacs) over the river Buchinala and the said contract from the

Govt. of Jharkhand was allotted to Kamla Pathak (the petitioner). As per

partnership deed, , the petitioner and Virendra Pandey has to invest 60%

of the total invested including work and 40% to be invested by other

three persons including complaint work was also decided that the profit

will also be distributed accordingly. It was agreed that the work was

being completed peacefully within the stipulated period and if any

dispute will arose among the partners, they will resolve it peacefully and

amicably by sitting together and if not will move to the resolved, they

court. After completion of 70% of the work, the petitioner issued a

cheque bearing No. 363356 of Rs.15,00,000/- to the complainant on

12.7.2012 as his share. The cheque was placed before the bank on

14.7.2012 and it was dishonoured due to insufficient fund. The

complainant approached the petitioner and informed about the matter,

on the direction of petitioner, he again placed the cheque before before

the bank, but again it dishonoured due to the reasons that the drawer

stooped payment. Hence, it alleged, the petitioner had intention to cheat.

It further alleged that the other two accused have joined their hands with

the petitioner and they were executing the rest of the 40% of the work

and ousted the complainant. It is alleged the that the petitioners had not

given a single pai to the complainant and in a criminal conspiracy he had

been cheated.

4. Mr. Mukherjee, the learned counsel for the petitioner

submits that allegations in the complaint petition are made that a cheque

of Rs.15 lacs was issued which was dishonoured and further allegations

are made that out of an agreement, the petitioner was working with

construction work and subsequently he was not allowed to work. He

submits that the said cheque was the subject matter in a case arising out

under section 138 of Negotiable Instruments Act and he was convicted

by the learned trial court. He submits that the petitioner has preferred

the appeal being Cr.Appeal No.217 of 2015 and by judgment dated

28.04.2017 the petitioner has been acquitted. He submits that based on

the said cheque itself, the present case is filed and learned court has

been pleased to take cognizance under sections 406 and 420 IPC. He

submits that if the case is allowed to continue, it will amount to abuse of

process of law.

5. Md. Asghar, the learned counsel appearing on behalf of the

O.P.No.2 submits that the case has been rightly filed and the learned

court has rightly taken cognizance and he submits that allegations are

there, the another case for cheating can be maintained.

6. Learned counsel for the respondent State submits that the

learned court on the complaint petition has taken cognizance.

7. In view of the above and looking into the complaint, it is

crystal clear that for a sum of Rs.15 lacs the cheque was issued by the

petitioner and for dishonour of the said cheque, the petitioner faced the

trial in which he was convicted and subsequently in the appeal the

petitioner has already been acquitted by the judgment dated 28.4.2017

and the said cheque is said to be for a case under section 406 and 420

IPC and in the case in which the petitioner has already been acquitted

under section 138 of the Negotiable Instruments Act, and based on the

said cheque, the complaint case has been filed and the learned court has

taken cognizance under section 406 and 420 of I.P.C. Thus, when the

specific provision is there for dishonour of cheque under the Negotiable

Instruments Act, section 406 and 420 of the IPC is not attracted in the

case in hand and further it is well settled that for every contractual

violation cannot be the subject matter of criminal trial as has been held

by the Hon'ble Supreme Court in the case of M/s MNG Bharatesh Reddy

v. Ramesh Ranganathan and Others (2002) SCC Online SC 1061).

8. In view of the above, the entire criminal proceeding in

connection with C/1 Case No.1798 of 2012 including the cognizance

order dated 08.03.2013, pending before learned Judicial Magistrate,

Ranchi is quashed.

9. Cr.M.P. No.3099 of 2013 stands allowed and disposed of.

10. Pending petition, if any, also stands disposed of accordingly.

( Sanjay Kumar Dwivedi, J.)

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