Jharkhand High Court
Madhur Shyam Kunj vs The State Of Jharkhand & Ors on 29 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1828 of 2013
Madhur Shyam Kunj
.......Petitioner
Versus
The State of Jharkhand & Ors.
...... Opp. Parties
........
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mrs. Rakhi Rani, Advocate
For the State : Mr. Praful Jojo, A.P.P.
07/Dated: 29/01/2024
Heard Mrs. Rakhi Rani, learned counsel for the petitioner and Mr.
Praful Jojo, learned counsel for the State.
2. This petition has been filed for quashing the order dated 29.08.2012
passed by the learned District & Sessions Judge-V, Ranchi in Criminal Revision No.
128 of 2011.
3. The complaint case was filed alleging therein that the complainant is a
super stockiest who supplies goods in the whole of the State of Jharkhand and
the accused persons are the proprietors of the firm M/s SANDHYA SALES, Poddar
Para, Jharia, who work as a distributor to supply in Jharia.
It is alleged that in the very first transaction on 20.08.2008, being
induced by a post dated cheque of Rs. 10,741/- bearing Cheque No. 584899 dated
19.12.2008, drawn on Canara Bank, Jharia Branch, the Complainant delivered the
goods of the above said amount to the accused through invoice no, SCT 00018
dated 20.08.2008. That the above mentioned cheque was dishonoured when
presented on due date due to insufficiency of fund. A photocopy of the cheque and
the cheque return memo are attached with the petition. That on giving intimation
of such dishonour the accused persons had assured the complainant to make the
payment in cash, which was false, only to avoid their criminal liability of such
dishonour. That on realizing the dishonest intention of the accused persons, the
complainant send a pleader notice on 8.12.09 through registered post.
It is further alleged that the accused persons neither replied the notice
nor took any initiative towards the payment of the said amount. The subsequent
conducts of the accused persons show nothing, but their dishonest intention, right
from the beginning of the transaction. The post-dated cheque was only a
fraudulent and dishonest inducement by the accused persons to deceive the
complainant to deliver the goods, for which the accused persons never intended to
pay.
4. Mrs. Rakhi Rani, learned counsel for the petitioner submits that the
case is made out under sections 417 and 420 of I.P.C inspite of that learned court
has been pleased to dismiss the said complaint by order dated 25.05.2011. She
submits that the said order was challenged before the learned revisional court and
the learned revisional court by order dated 29.08.2012 has been pleased to
dismiss the revision petition and affirmed the order of the learned trial court. She
submits that case is made out and the case can be proceeded further but both the
courts have erred in law in dismissing the complaint case filed by the petitioner
and to buttress this argument she relied in the case of "Sangeetaben
Mahendrabhai Patel Vs. State of Gujrat and Anr."reported in 2012 (2)
East Crl. C. 327 (SC).
5. Learned counsel for the State submits that the learned revisional court
has rightly passed order.
6. The Court finds that in the complaint petition itself it has been
disclosed that cheque was issued by the O.P. No.2 on 20.08.2008. The said cheque
was dishonoured when presented in due date due to insufficient fund. Thereafter
no case was filed under section 138 of Negotiable Instrument Act. Thus, it is clear
that for non payment of cheque amount the complaint case was filed averting
therein that on the assurance the case was not filed and in view of that case is
made out under section 420 of I.P.C. and this is an admitted position. Once the
statutory remedy was put in action by the petitioner it was incumbent upon him
to proceed in terms of said statutory provision. Admittedly, the case is arising out
of non payment of cheque amount. Further from the averment it is clear that
there is commercial transaction between the parties and if the commercial
transaction is there section 420 I.P.C. is not attracted, if the allegation to that
effect is not there. In the solemn affirmation the complainant has clearly stated
that he has not filed any case under section 138 of N.I. Act and due to lapse of
time in filing case under 138 N.I. Act, the present case has been filed and thus in
Solemn Affirmation also intention of the complainant was accepted by him also.
7. In view of the facts and circumstances of the case, the learned trial
court and the learned revisional court have rightly passed the orders. The
judgment relied by the learned counsel for the petitioner in the case of
Sangeetaben Mahendrabhai Patel (supra) is not in dispute. In that case
138 N.I. Act case was already filed in which the accused was acquitted and
second case was under the relevant section of I.P.C and the Hon'ble Supreme
Court considering the the double jeopardy and in view of that the fact of that
came to the conclusion that double jeopardy is not made out and the second case
was different in nature and in view of that application was allowed.
8. In view of above the Court finds that there is no illegality in the
impugned orders and the learned trial court as well as learned revisional court
have rightly passed said order. No case of interference is made out. Accordingly,
this petition is dismissed. Pending I.A, if any, stands disposed of.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/
