Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Miscellaneous Petition No. 262 of 2003 --- 1.Arun Jaiswal proprietor of M/s. A. B. Sales, Dhanbad 2. Vijay Jaiswal … … Petitioners Versus 1.The State of Jharkhand 2.Shri Ajay Sinha … … Opposite Parties --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioners : Mr. Navneet Sahay, Advocate For the Opposite Party No. 1 : Mr. Shekhar Sinha, A.P.P. For the Opposite Party No. 2 : Mr. P. P. N. Roy, Senior Advocate --- 7/12.01.2015 Heard Mr. Navneet Sahay, learned counsel for the petitioners and Mr. P. P. N. Roy, learned senior counsel for the opposite party no. 2 as well as Mr. Shekhar Sinha, learned A.P.P. for the State.
2. In this application, the petitioners have prayed for quashing the entire criminal proceeding initiated in Complaint Case No. 297 of 2002 including the order dated 23.08.2002 passed by the Judicial Magistrate, Ranchi in which cognizance has been taken for the offences punishable under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. It has further been prayed for quashing of the order dated 08.01.2003 by which non- bailable warrant has been issued against the petitioners without service of summons.
3. It appears that the complaint petition was instituted by the complainant - opposite party no. 2 herein in which it was alleged about the accused nos. 1 and 2 (petitioners herein) that they represented themselves as proprietor and manager of M/s. A. B. Sales, Dhanbad respectively and requested the complainant to supply T.V., Audio system and other items on credit. In terms of such agreement, various electronic goods were supplied by the complainant to the accused persons from time to time and the accused persons used to pay the price of the same of and on. It was alleged that in the end of year 2001, Rs. 5 lacs became due from the accused persons - petitioners for the supply of the materials and the accused person no. 1 (petitioner no. 1 herein) issued a cheque of Rs. 5 lacs drawn on Uco Bank, Main Branch, Dhanbad bearing no. AH/126/68816 dated 14.12.2001 in -2- favour of East West Marketing, the firm of the complainant. On the cheque being presented to the State Bank of India, Tupudana Branch, Hatia, Ranchi, the same was dishonoured with a remark that the payment was stopped by the drawer. Legal notice followed which was received by the accused persons on 27.02.2002 and thereafter the complainant was approached by the accused persons who requested the complainant to present cheque for payment in March 2002. On presenting the cheque on 18.03.2002, the same was dishonoured with the remark 'signature differs'. Ultimately on giving a legal notice and the accused having failed to make payment to the complainant, inspite of the legal notice the complaint case was instituted.
4. After the complainant was examined on solemn affirmation and after examination of his witnesses, cognizance was taken under Section 138 of the Negotiable Instruments Act and Section 420 of the I.P.C.
5. The learned counsel for the petitioners has assailed the order taking cognizance by submitting that the learned Judicial Magistrate did not properly apply his judicial mind while taking cognizance for the offences as stated herein. He has submitted that the mens rea which is necessary for continuation of a criminal proceeding is absent as is evident from a perusal of the complaint petition. He has further submitted that the bona-fide intention of the accused persons - petitioners would be evident from the fact that in consonance to the transactions between the petitioners and the complainant, amounts used to be paid and in fact petitioners had all along intended to make payment, but the filing of the complaint case in haste by the complainant made a hindrance to their intention to make payment. He has further submitted that in fact initially the cheque which was given to the complainant was an undated cheque as would be evident from the letter dated 03.04.2001 addressed to the Manager of Uco Bank, Dhanbad by the petitioner no. 1 directing therein to stop payment.
6. The learned senior counsel appearing on behalf of the opposite party no. 2 has submitted that earlier the anticipatory bail application of the petitioners was rejected by this Court in A.B.A. No. 100 of 2003 and that would tantamount to mean that a prima-facie case is made out against the petitioners. He has further submitted that the complaint petition would reveal that there was an intentional act on the part of the -3- petitioners to direct the bank to stop payment, as such the claim of the counsel for the petitioners that no means rea is made out from the complaint petition is devoid of any merit.
7. After hearing the learned counsel for the parties and after going through the record, I find that a perusal of the complaint petition would reveal that there has been a deliberate attempt on the part of the petitioners to deprive the complainant from encashing the cheque of Rs. 5 lacs which they had issued. At the first instance, when the cheque was presented to the bank, the same was returned with the remark 'stop payment'. When this cheque was presented for the second time, it was once again dishonoured with the remark 'signature differs'. This shows the mens rea of the petitioners as in spite of the issuance of the cheque and in spite of the same being dishonoured for the first time, a false pretext had been made to furnish the cheque before the bank and the same was also returned with the remark 'signature differs'. Moreover, if the petitioners really had any intention to make good the amount which was due to the complainant, the pendency of the present case would not have put any hindrance on their efforts. Therefore, the complaint petition prima-facie reveals an offence under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. As such, in my view no ground has been made out by the petitioners so as to warrant interference by this Court by invoking the provisions under Section 482 of the Cr.P.C.
8. There being no merit in this application, the same is accordingly dismissed. (Rongon Mukhopadhyay, J) R. Shekhar Cp 3