Jharkhand High Court

Diptymoy Pain vs State Of Jharkhand on 12 June, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

      IN        THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No. 1023 of 2017
      Diptymoy Pain                                .....     ...      Petitioner
                                 Versus
      1. State of Jharkhand.
      2. Manoj Kumar Vishwakarma                   .....    ...       Opposite Parties
                                     with
                           Cr.M.P. No. 1019 of 2017
      Diptymoy Pain                                .....     ...      Petitioner
                                 Versus
      1. State of Jharkhand.
      2. Sujit Kumar Singh                      ..... ...      Opposite Parties
                         --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. P.A.S. Pati, Advocate.

      For the State      :        Mrs. Lily Sahay, A.P.P.
                         :        Ms. Sushma Aind, A.P.P.
      For the O.P. No. 2 :        Mr. S.K. Jha, Advocate
                                                           [in Cr.M.P. No. 1019 of 2017]
                             ------
05/ 12.06.2024    Heard Mr. P.A.S. Pati, learned counsel appearing for the

petitioners in both the cases, Mrs. Lily Sahay and Ms. Sushma Aind, learned A.P.Ps. in respective cases and Mr. S.K. Jha, learned counsel appearing for the O.P. No. 2 in Cr.M.P. No. 1019 of 2017.

2. Notice upon the O.P. No. 2 in Cr.M.P. No. 1023 of 2017 has been validly served, however, valakatnama has not been filed on his behalf.

3. In Cr.M.P. No. 1023 of 2017, prayer is made for quashing of the entire criminal proceedings including the order taking cognizance dated 03.12.2014, in connection with C.P. Case No. 1564 of 2014, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad.

4. In Cr.M.P. No. 1019 of 2017, prayer is made for quashing of the entire criminal proceedings including the order taking cognizance dated 29.09.2014, in connection with C.P. Case No. 1984 of 2014, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad.

5. The complaint was filed alleging therein that the accused no.1 is Chairman-cum-Managing Director, accused no.2 is Vice President, accused no.3 is Cashier-cum-Accountant & Branch In-charge Dhanbad & accused no. 4 is Branch Manager, Dhanbad Branch. M/s. Sarada Pleasure & Adventure Limited having its office at Hotel Sharda, Hill Cart Road, Malliguri, Siliguri-734003 (W.B.). The complainant and

witnesses are collection agents and investors of the said company. The accused persons collected huge amount through complainant under fixed deposit scheme and recurring deposit scheme from investors in and around Dhanbad District (Jharkhand) around Rupees 4.75 crores approximately with full guarantee to pay back all the matured amount on maturity day, but it did not happened so, even after maturity investors were not given payments. The complainant and witnesses made their best effort for payment but all in vain.

On repeated heavy pressure ultimately accused party issued cheques to complainant and witness on various dates at Dhanbad which details are given below:-

(a) Manoj Kumar Vishwakarma (Agent LD.

No.120464)- Cheque No.(1) 156284 dt.27/05/2014 for Rs.120000/- (2)156285 dt.27,05.2014 for Rs.58999/-of IDBI Bank, Hazaribagh Branch (3) 156090 dt.22.05.2014 for Rs.50000/- (4)156091 dt.17/5/14 for Rs.50000/- (5)156092 dt. For Rs.50000/-(6)156093 dt.7/5/14 for Rs.50000/-(7)156094 dt.27/5/14 for Rs.50000/- of Axis Bank, Siliguri Branch.

(b) Om Prakash Mahato (Investor)- Cheque no.156280 dt.21.05.2014 for Rs.200000/- of IDBI Bank, Hazaribagh.

(d) Md. Naim, (Agent ID No.120520)-Cheque No.004861 dt.10.05.2014 for Rs.24100/- of Axis Bank Dhanbad Branch.

(e) Md. Perwez Ansari (Investor)- Cheque no.156283 dt. 18/05/2014 for Rs.128000/-IDBI Bank Hazaribagh Branch.

(f) Md. Anwar, (Investor)- Cheque no.1)523063 dt.19/5/14 for Rs.19200/- of Bank of India, Siliguri Branch (2) 156282 dt.19/05/2014 for Rs.19200/- of

IDBI Bank, Hazaribagh Branch.

Accordingly the complainant and the witnesses presented their respective cheques in the bank but all returned on "Insufficient Fund" from bank details of which are as follows:-

(i) Manoj Kumar Vishwakarma (Complainant) deposited his cheques in State Bank of India, Jharia Bazar, Dhanbad Branch and bounced on 29/05/2014.

(ii) Om Prakash Mahato (Witness) deposited his cheques in Bank of India Karkend Dhanbad Branch and bounced on 23.05.2014.

(iii) Farooque Khan (Witness)- deposited his cheque in Allahabad Bank, Park Market Dhanbad Branch and bounced on 23/05/2014.

(iv) Md. Naim (Witness) deposited his cheque in Allahabad Bank Dhanbad Branch and bounced on 27/05/2014.

(v) Md. Perwez Ansari (Witness) deposited his cheque in State Bank of India, Dhanbad Branch and bounced on 27/05/2014.

(vi) Md. Anwar (Witness) deposited his cheques in State Bank of India Dhanbad Branch and bounced on 27/05/2014. Thereafter legal notice was served upon the accused by the complainant and witnesses through registered post on 6/6/2014. They have evidently admitted that they have consciously-cum- intentionally committed criminal conspiracy by issuing such fraud account payee cheques with the sole object for not pay back the maturity amount to the investors. Hence liable at once to be prosecuted under Section 420,406 & 120(B) of the L.P.C. As such on demand notice, the accused parties neither paid the cheque amount nor gave any reply.

The accused no.1, being chairman-cum-Managing Director of the company liable in view of the section 141 of the N.I. Act. and under section 138 of N.I. Act. to be prosecuted and accused no.2 being vice president of the company is liable in view of the under Section 138 of N.I. Act to be prosecuted and accused no.3 being cashier-cum- accountant and Branch in charge (Dhanbad) of the said company is

liable to be prosecuted under section 420,406,120(B) & 34 of the I.P.C. and accused no. 4 being Branch Manager (Dhanbad) of the said company is liable to be prosecuted under Section 420,406,120(B) & 34 of the I.P.C.

6. Mr. Pati, learned counsel appearing for the petitioner submits that the petitioner has not issued any cheque in favour of the complainants. He draws the attention of the court to Section 138 of the NI Act and submits that only the drawer of the cheque can be prosecuted. He submits that further the cheques were issued by the Director of the company and the company is also not made accused in this case, arising out of Section 138 of the NI Act, however, the company is a necessary party in light of Section 141 of the NI Act. By way of referring para-10 of the complaint he submits that only allegation is made that the petitioner is the Branch Manager of the said company and he is liable to be prosecuted under Sections 420, 406, 120-B and 34 of the Indian Penal Code, however, what is the role played by this petitioner is not disclosed in the complaint petition. He further strengthens his arguments by way of submitting that although the learned court has not been pleased to take cognizance under Sections 420, 406, 120-B and 34 of the Indian Penal Code and cognizance has been taken only under Section 138 of the NI Act, in spite of that the petitioner has been called upon to face the trial. On these grounds, he submits that the entire criminal proceedings may kindly be quashed.

7. Learned A.P.Ps. appearing for the State in respective cases submit that on the complaint case, the learned court has been pleased to take cognizance.

8. Learned counsel appearing for the O.P. No. 2 in Cr.M.P. No. 1019 of 2017 submits that since the money was not paid, in view of that the case is made out against the petitioner, who happened to be the Branch Manager of the company in question.

9. Looking into the contents of the complaint petition, it is crystal clear that the allegations are made that the Chairman-cum- Managing Director and the Vice President of the company in question

are liable under Section 141 of the NI Act. Admittedly the cheques were dishonoured and for that the case was filed. The petitioner is the Branch Manager of the said company and he is not liable to be prosecuted under Section 141 of the NI Act and further what is the role played by this petitioner in both the complaint petitions are not disclosed in the complaint petition. No ingredients of Section 415 IPC, which is the definition Section of cheating is made out. Further the case of the petitioner is strengthened in view of the fact that the learned court has not been pleased to take cognizance under Sections 420, 406, 120-B and 34 of the Indian Penal Code and cognizance has been taken only under Section 138 of the NI Act, in spite of that all the accused persons have been called upon to face the trial.

10. Identical is the situation in the case of Sunita Palita & Ors. Versus Panchami Stone Quarry, reported in (2022) 10 SCC 152, wherein the Hon'ble Supreme Court in para-29 of the said judgment held as follows:-

"29. As held in K.K. Ahuja v. V.K. Vora [K.K. Ahuja v. V.K. Vora, (2009) 10 SCC 48 : (2009) 4 SCC (Civ) 1 : (2010) 2 SCC (Cri) 1181] when the accused is the Managing Director or a Joint Managing Director of a company, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company for the conduct of the business of the company. This is because the prefix "Managing" to the word "Director" makes it clear that the Director was in charge of and responsible to the company, for the conduct of the business of the company. A Director or an officer of the company who signed the cheque renders himself liable in case of dishonour. Other officers of a company can be made liable only under sub-section (2) of Section 141 of the NI Act by averring in the complaint, their position and duties in the company, and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence."

11. Admittedly the cheques in question were not issued or signed by this petitioner in both the complaint cases, in view of that requirement of Section 141 of the NI Act is not fulfilled so far as this petitioner is concerned.

12. In view of the above, the entire criminal proceedings including the order taking cognizance dated 03.12.2014, in connection with C.P. Case No. 1564 of 2014, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad [in Cr.M.P. No. 1023 of 2017] and the entire criminal proceedings including the order taking cognizance dated 29.09.2014, in connection with C.P. Case No. 1984 of 2014, pending in the court of learned Judicial Magistrate, 1 st Class, Dhanbad [in Cr.M.P. No. 1019 of 2017], are hereby, quashed, so far as this petitioner is concerned.

13. Both these petitions are allowed and disposed of.

14. It is made clear that so far as other accused persons are concerned, this court has not interfered with and the learned court will proceed in accordance with law.

(Sanjay Kumar Dwivedi, J.) Amitesh/-

[A.F.R.]