IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 1172 of 2014 --- 1. Mahesh Kumar Kejriwal son of Sri Murari Mohan Kejriwal, resident of 12A, 5th Floor, Netaji Subhash Road, Kolkata, West Bengal (700001) 2. M/s Parijat Vyapaar Pvt. Ltd. 12A Bhagat Chambers, 5 th Floor, Netaji Subhash Road, P.S. – Hare Street Kolkata, resident of M/s Parijat Vyapaar Pvt. Ltd. Both of 12-A Bhagat Chambers, Top Floor, Netaji Subhash road, P.S. :- Hare Street Kolkata, Pin – 700001. … Petitioners Versus 1. The State of Jharkhand.
2. M/s Narbheram Finance Co. Ltd. A company incorporated under Indian Companies Act, having its registered office at 26, Shakeshpeare Sarani, Dimple Court, Kolkata 70017 and administrative office Narbheram Building Bistupur, P.O. & P.S. – Bistupur, Town Jamshedpur, Dist- Singhbhum East represented through Sri Sanjay Kumar, Senior Manager, Finance cum constituted Attorney/Authorized representative. … … Opp. Parties With Cr. M. P. No. 435 of 2014 1. Mahesh Kejriwal @ Mahesh Kumar Kejriwal S/o Murari Mohan Kejriwal Director of M/s Parijat Vyapaar Pvt. Ltd.
2. M/s Parijat Vyapaar Pvt. Ltd., both of 12-A Bhagat Chambers, Top Floor, Netaji Subhash Road, P.S. – Hare Street Kolkata – 700001, resident of M/s Parijat Vyapaar Pvt. Ltd., both of 12-A Bhagat Chambers, Top Floor, Netaji Subhash Road, P.S. – Hare Street, District – Kolkata – 700001 (West Bengal), both represented by petitioner No. 1 Mahesh Kejriwal @ Mahesh Kumar Kejriwal. ….. ….. Petitioners Versus 1. The State of Jharkhand 2. M/s Narbheram Finance Co. Ltd. A company incorporated under Indian Companies Act,having its registered office at 26, Shakeshpeare Sarani Dimple Court, Kolkata – 700017, and and administrative office Narbheram Building Bistupur, P.O. & P.S. – Bistupur, Town Jamshedpur, Dist- Singhbhum East represented through Sri Sanjay Kumar, Senior Manager, Finance cum constituted Attorney/Authorized representative. …. …. Opposite Parties --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioners : Mr. P. C. Tripathi, Advocate For the O. P. No. 2 : Mrs. A. R. Choudhary For the State : A.P.P. --- 09/12.02.2015 Heard Mr. P. C. Tripathi, learned counsel appearing on behalf of the petitioners and Mrs. A. R. Choudhary, learned counsel appearing on behalf of the opposite party No.
2. In this application, the petitioners have prayed for quashing the entire criminal proceedings including the order dated 06.02.2014 passed by the learned Principal Sessions Judge, Jamshedpur in Criminal Revision No. 237 of 2013 in connection with C/1 -646 of 2005 which was preferred against the order dated 27.08.2013 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur. It appears that a complaint case was instituted by the complainant-opposite party No. 2, in which, it was stated that the complainant-company was engaged in the business of financing. The accused had issued four cheques being Cheque Nos. 476775 to 476778 amounting to Rs. 5,00,000/- each dated 31.03.2005 all drawn on ABN Amrao Bank, N. V. Azimganj House, 7 Camac Street, Kolkata in favour of the complainant-company towards part payment of its dues. It has been alleged that the complainant presented two cheques being Cheque Nos. 476775 and 476776 amounting of Rs. 5,00,000/- each dated 31.03.2005 to its banker whereupon on 16.04.2005, it was informed by the Bank of Baroda that the said cheques have been dishonored with an endorsement of “insufficient funds”. It was alleged that two other cheques were also dishonored on account of “insufficient funds”. It has further been stated that in lieu of the same, the accused paid a sum of Rs. 5,00,000/- by Demand Draft. With respect to the dishonor of the cheques of Rs. 15,00,000/-, legal notice was issued upon the accused and since the amount was not paid, the complaint case was instituted. Subsequently, after cognizance was taken under Section 138 of the N. I. Act, an application was filed by the petitioners on 24.07.2013 and the said application, after considering the entire facts vide order dated 27.08.2013 was dismissed. This order was under challenge in Criminal Revision No. 237 of 2013 which was also dismissed by the learned Principal Sessions Judge, Jamshedpur vide order dated 06.02.2014. It has been submitted by the learned senior counsel for the petitioners that from the complaint petition itself, it is apparent that Rs. 5,00,000/- was paid to the complainant after the dishonor of the cheques vide Demand Draft dated 18.04.2005 issued by the State Bank of India, Barbil and with respect to rest Rs. 15,00,000/- for which three cheques were dishonored he has submitted that there was an arbitration proceeding and in the arbitration proceedings joint receivers were appointed and out of the amount received from M/s Rungta Mines an amount of Rs. 15,00,000/- in lieu of the dishonored cheques bearing Cheque Nos. 476775, 476776 and 476777 dated 31.03.2005 was paid. In such circumstances, the learned senior counsel submits that since the entire demand of the complainant having been satisfied and the total amount of Rs. 2,00,000/- having been paid, the entire criminal proceedings as against the petitioners is liable to be quashed. The learned counsel for the opposite party No. 2, on the other hand, while relying on the counter affidavit filed by her has submitted that earlier the petitioners had preferred an application under Section 482 of the Cr.P.C. before this Court in Cr.M.P. No. 435 of 2009 for quashing of the entire criminal proceedings including the order taking cognizance as well as the issuance of process under Section 83 Cr.P.C. and vide order dated 26.06.2013, the order dated 10.09.2012 by which processes under Section 83 Cr.P.C. were ordered to be issued, was quashed. She, therefore, submits that in view of the fact that the petitioners had already moved this Court, they are precluded from agitating the same grievance with the same cause of action. She further submits that in fact in the arbitral award itself arising out of E.C. No. 71 of 2006, it was mentioned therein that the award will not come in the way of any proceedings before the appropriate forum under Section 138 of the Negotiable Instruments Act. She has further submitted that in fact only in order to circumvent the order passed by this Court in the earlier application under Section 482 Cr.P.C., the petitioners have filed an application before the learned trial court without there being any provision of law and as such the present application is liable to be dismissed. After hearing the learned counsels for the parties and after going through the records, I find that in the arbitral proceedings, the appellate court in the High Court of Kolkata in the original side had passed an order on 02nd July, 2007 the relevant portion of which for the purposes of this application is quoted hereinbelow:- “This order will not stand in the way of Mr. Banerji’s client to take further steps, if any, before the appropriate forum under Section 138 of the Negotiable Instruments Act against Mr. Mitra’s client and the parties shall be at liberty to place all the facts after such payments are being made. We further make it clear that any observation made by us will not stand in the way of the appropriate court to decide the matter.” After the said order was passed, satisfaction was recorded by the court vide order dated 10th November, 2010. It further appears from the minutes which has been appended to the main application that in view of the three dishonored cheques bearing Cheque Nos. 476775, 476776 and 476777 dated 31 March, 2005 an amount of Rs. 15,00,000/- by Cheque No. 025521 dated 01st August, 2007 drawn on United Bank of India, High Court Branch, Kolkata was paid to the complainant. It has been argued by the learned counsel for the petitioners that in view of the facts that the entire amounts arising out of the dishonored cheques have already been received by the complainant pursuant to the arbitral proceedings in such circumstances, the complainant should not have any grievance. However, with respect to the said submissions and as has been indicated above, it was specifically stated by the Hon’ble High Court at Kolkata in E.C. No. 71 of 2006 that the arbitration order will not stand in the way of taking further steps with respect to the proceedings under Section 138 of the N.I. Act. Moreover, the application which has been filed by the petitioners, which are under challenge before this Court seems to be an attempt on the part of the petitioners to circumvent the order passed in Cr.M.P. No. 435 of 2009. Perusal of the application filed under Section 482 Cr.P.C. in Cr.M.P. No. 435 of 2009 reveals that the entire criminal proceedings was under challenge including the order taking cognizance although no specific order had been passed with respect to the prayer of the petitioners for quashing of the entire criminal proceedings but the grounds which were taken in the earlier application under Section 482 Cr.P.C. as well as in the present application seems to be one and the only additional factor which has been brought on record in this application is the application is filed by the petitioner before the learned court below which was rejected and subsequently confirmed in revision. Moreover, nothing has been brought on records to suggest as to under what provision of law the said applications were filed. Merely because the amount indicated in the dishonored cheques have been satisfied and that to after filing of the complaint case when even after the dishonor of the cheques, legal notice was issued to the petitioners which yielded no result and therefore the same cannot be a ground for quashing the entire criminal proceedings. In view of what has been discussed above, I do not find any merit in this application. Accordingly, this application is dismissed. (R. Mukhopadhyay, J.) Umesh/-