Madhya Pradesh High Court

Vishnu Goyal vs Praveen Kumar Dutta on 22 April, 2022

Author: Rajeev Kumar Shrivastava

                                    1

                      High Court of Madhya Pradesh
                             Bench Gwalior
                          *****************
           SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                            MCRC 18057 of 2021

                   Vishnu Goyal vs. Praveen Kumar Dutta
                                     &
                          MCRC 60278 of 2021

                     Vishnu Goyal vs. Praveen Kumar Dutta

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Shri Bhagwan Raj Pandey, counsel for petitioner Vishnu Goyal.
Shri Aditya Sharma, counsel for respondent Praveen Kumar Dutta.
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Reserved on                                  20-04-2022
Whether approved for reporting             ........./..........
                ==================================
                                       ORDER

(Passed on 22/04/2022)

Per Rajeev Kumar Shrivastava, J:-

This Order shall also govern disposal of MCRC 60278 of 2021 preferred

by petitioner Vishnu Goyal u/S. 482 of CrPC seeking quashment of Complaint

dated 03-10-2016 submitted by respondent Praveen Kumar Dutta under Sections

200 & 202 CrPC in connection with UNCR 201/2018 (Praveen Kumar Dutta vs.

Vishnu Goyal) and other subsequent proceedings initiated therefrom.

(2) Similarly, another petition MCRC 18057 of 2021 preferred by petitioner

Vishnu Goyal u/S 482 of CrPC seeking set aside the order dated 12-03-2021

passed by Sessions Judge, Vidisha in Criminal Revision No.05/2021 whereby

the criminal revision preferred by respondent Praveen Kumar Dutta against

order dated 18-02-2021 passed by JMFC, Vidisha in SCNIA/3562/2015 (Vishnu

Goyal vs. Praveen Kumar Dutta) has been allowed.

(3) Since the facts of both petitions are identical in nature, therefore, for the

sake of convenience, they are heard simultaneously.

(4) Necessary facts giving rise to present petitions, in brief, are that on 07-11-

2015, petitioner submitted a complaint u/S 138 of Negotiable Instruments Act

(in shot '' the NI Act'') before the Court of JMFC alleging therein that on 01-10-

2015 respondent had purchased 18 pieces of truck Tyre and a tube, amounting to

Rs.3 lac and in this regard, respondent had given a cheque of Rs.3 lac, dated 01-

10-2015 of State Bank of India to the petitioner. When the said cheque was

presented before the Canara Bank, Vidisha, on the same day, the same was

dishonoured due to ''insufficiency of funds''. Thereafter, a notice dated 09-10-

2015 was issued by the petitioner to the respondent. When the amount was not

paid by respondent, the petitioner filed a complaint u/S 138 of the NI Act

against respondent and also produced all witnesses in support of his complaint.

When the case was fixed for final hearing on 08-02-2021, the respondent filed

an application u/S 223 of CrPC mentioning the fact that he has also filed a

complaint u/Ss 200 and 202 CrPC before the Court of JMFC, Vidisha against the

petitioner on the ground that his cheque was stolen by petitioner and same has

been misused. In response, the petitioner filed his reply to said application u/S

223 of CrPC on the same day, denying allegation of respondent. After hearing

both the rival parties, the Court of JMFC vide order dated 18-02-2021 rejected

the application of respondent filed u/S 223 CrPC. Being aggrieved, respondent

filed a Criminal Revision No.05/2021 before the Sessions Judge which has been

allowed vide order dated 12-03-2021 and the Coordinate Bench of this Court

vide order dated 07-04-2021 has stayed the effect and operation of impugned

order dated 12-03-2021 as well as vide order 10-12-2021 has stayed further

proceedings with respect to Private Complaint UNCR 201/2018.

(5) It is contended on behalf of petitioner that in the complaint filed u/S 138

of NI Act, the evidence of petitioner is concluded as well as right to cross-

examination of respondent has already been struck off and defence has already

been closed and case has been directed to be listed for final hearing. In spite of

knowing trial of such complaint, respondent had filed an application u/S 223 of

CrPC for hearing of both complaints analogously and the same was rejected by

Court of JMFC vide order dated 18-02-2021. It is further contended that learned

Sessions Judge has committed an illegality in allowing Criminal Revision

No.05/2021 filed by respondent. An application u/S 91 CrPC filed by respondent

on 18-08-2017 before the Court of JMFC which was rejected vide order dated

11-09-2017. Against the order dated 11-09-2017, respondent filed a Criminal

Revision No.108 of 2017 before Fourth Additional Sessions Judge, which was

dismissed vide order dated 13th January, 2018. Against orders dated 11-09-2017

and 13th January, 2018, respondent filed a petition under Section 482 of CrPC

before this Court i.e. MCRC No.3952 of 2018 which was dismissed by a

coordinate Bench of this Court vide order dated 13-12-2018. It is further

submitted that the allegation of stealing alleged cheque and misusing the same

against the petitioner is false and the complaint has been filed by the respondent

u/Ss 200 and 202 CrPC by way of counter-blast, which is nothing but it is a clear

abuse of process of law. It is further submitted that trial of complaint filed under

NI Act has been directed to be listed for final hearing and the Magistrate

concerned in another complaint filed by respondent under Sections 200 and 202

of CrPC has taken cognizance for offences under Sections 420, 468, 469, 471 of

IPC against petitioner. It appears that the complaint was filed by the respondent

in the year 2016 and cognizance has been taken by the Magistrate vide order

dated 13-11-2021 i.e. after five years long. Respondent is in habit of filing vague

application to create obstacles in the proceedings. Therefore, it is prayed that

impugned order dated 12-03-2021 passed by Sessions Judge deserves to be set

aside as well as private complaint filed u/Ss 200 & 202 of CrPC by respondent

in connection with UNCR No.201/2018 and other subsequent proceedings also

deserve to be quashed.

(6) In support of his contention, counsel for the petitioner has relied upon the

judgment of the Hon'ble Supreme Court in the matter of Bir Singh Vs. Mukesh

Kumar CRIMINAL APPEAL NOS.230-231 OF 2019 (@ SLP(CRL ) NOS.

9334-35 OF 2018) wherein it has been held as under:-

''37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.

38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.'' (7) On the other hand, counsel for the respondent supported the impugned

order 12-03-2021 passed by Sessions Judge whereby, a direction was issued to

take necessary steps for transfer of complaint of respondent to Court of JMFC,

Vidisha as SCNIA No.3562/2015 and UNCR No.201/2018 shall be heard and

decided together. Contention of petitioner in regard to delay in trial is baseless

and same cannot be accepted. It is further contended that respondent has rightly

filed complaint u/Ss 200 & 202 of CrPC as his cheque was stolen by petitioner

and same was misused by filing a false complaint u/S 138 of the NI Act and

Magistrate concerned has rightly taken cognizance for offence under Sections

420, 468, 469, 471 of IPC against the petitioner. Hence, both petitions deserve

dismissal.

(8) Heard the ounsel for the parties at length and perused the documents as

well as impugned orders available on record.

(9) Sections 138 and 139 of NI Act are set out herein below for convenience:-

"138 Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque,within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such

cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.

139. Presumption in favour of holder.--It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."

(10) Provisions are made in Section 223 CrPC regrading persons who may be

charged and tried together, which run as under:-

''223. What persons may be charged jointly. The following persons may be charged and tried together, namely:-

(a) persons accused of the same offence committed in the course same transaction;

(b)person accused of an offence and persons accused of abetment of, or attempt to commit, such offence;

(c) person accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction;

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last- named offence;

(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860). or either of those sections in respect of stolen property the possession of which has been transferred by one offence;

(g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:

Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the

categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.'' (11) From bare perusal of the record, it is apparent that earlier respondent filed

an application u/S 223 CrPC for hearing of both complaints [UNCR 201/2018

(Praveen Kumar Dutta vs. Vishnu Goyal) & SCNIA/3562/2015 (Vishnu Goyal

vs. Praveen Kumar Dutta)] analogously, which was was rejected by the Court of

JMFC vide order dated 18-02-2021. Meanwhile, an application u/S 91 CrPC was

also filed by respondent before the Court of JMFC and same was rejected vide

order dated 11-09-2017. Against order dated 11-09-2017, respondent thereafter

filed a Criminal Revision No.108 of 2017 before the Sessions Court which was

dismissed vide order dated 13th January, 2018. Against orders dated 11-09-2017

and 13th January, 2018, respondent further filed a petition under Section 482 of

CrPC before this Court i.e. MCRC No.3952 of 2018 which was dismissed by a

coordinate Bench of this Court vide order dated 13-12-2018. Subsequently,

respondent filed a complaint u/Ss 200 and 202 of CrPC in the year 2016 making

allegation that by playing fraud the petitioner has forged his signature and filled

blank cheque which was stolen. It appears that the complaint was filed by

respondent in the year 2016 and cognizance has been taken by Magistrate

concerned vide order dated 13-11-2021 i.e. after five years. Respondent did not

properly pursue the matter and statements of respondent as well as his witnesses

were recorded u/Ss 200 and 202 of CrPC in the year 2021 and Jthe MFC

concerned vide order dated 13/11/2021 has taken cognizance for offence under

Sections 420, 468, 469 and 471 of IPC against petitioner. It is also apparent from

the record that the allegation made by respondent is with regard to theft of his

cheque which is the subject-matter of complaint registered u/S 138 of NI Act by

petitioner. Aforesaid modus operandi on the part of respondent reflects clear

mala fide to escape from the liability of issuance of cheque by him and it is a

clear abuse of process of Court and same could not be sustained in the eyes of

law. Therefore, the order of taking cognizance passed by Court of JMFC in

UNCR/201/2018 is perverse and same deserves to be quashed.

(12) As a consequence, Complaint submitted by respondent u/Ss 200 & 202

CrPC in connection with UNCR 201/2018 (Praveen Kumar Dutta Vs. Vishnu

Goyal) and other subsequent proceedings initiated therefrom are hereby

quashed. Similarly, order dated 18-02-2021 passed by JMFC, Vidisha in

connection with SCNIA/903562/2015 (Vishnu Goyal Vs. Praveen Kumar Dutta)

is hereby affirmed, as there is no perversity in rejecting the application filed by

respondent u/S 223 of CrPC and learned JMFC, Vidisha is directed to proceed

further with complaint filed u/S 138 of NI Act and decide the same in accordance

with law. Interim orders passed on earlier occasions by this Court, stand vacated.