Ashok Kumar Kejriwal Vs. State of Jharkhand

Ashok Kumar Kejriwal vs State of Jharkhand

Disposition Application dismissed Court Jharkhand Decided Aug 27, 2002

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Citation: sooperkanoon.com/523744
Court: Jharkhand High Court
Judge: Deoki Nandan Prasad, J.
Decided On: Aug 27, 2002
Case Number: Cr.M.P. No. 4727 of 2001
Subject: Criminal
Disposition: Application dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Criminal
Outcome / disposition: Application dismissed
Acts & sections: Code of Criminal Procedure (CrPC) , 1974 - Sections 190; Indian Penal Code (IPC) - Sections 406 and 420

Parties & Advocates

Appellant / Petitioner

Ashok Kumar Kejriwal

Advocate B.M. Tripathi, Adv.

Respondent

State of Jharkhand

Advocate Addl. Public Prosecutor (for No. 1) and; Nilesh Kumar Agrawal, Adv. (for No. 2)

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1974 - Sections 190; Indian Penal Code (IPC) - Sections 406 and 420
Reported In: 2003CriLJ1349

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 2 on 27-4-1998 for supply of good quality of wheat for his unit, namely, m/s. 6. on perusal, obviously there was an understanding between the parties and it is also..........that the dispute is of civil nature and thereafter a protest petition was filed which was treated to be a complaint by the court below. the opposite party/complainant was examined on solemn affirmation and the witnesses were also examined under section 202 of the code. after hearing, the learned court below took cognizance of the offence under sections 406 and 420 of the indian penal code against the petitioner, hence this application:4. mr. b. m. tripathi, learned counsel appearing on behalf of the petitioner submitted that the learned court below committed error in taking cognizance without applying his minds as the dispute is of civil nature and had there been any dues for supply of the wheat, the opposite party no. 2 would get the relief from the civil court by filing money suit and there is only dispute as regards to sub-standard quality of wheat which followed by disagreement in settling the financial account. it is further argued that the offences under sections 420 and 406 of the indian penal code are not applicable in the instant case as the business dealing was going on between the parties under an agreement and, therefore, the question is merely in respect of a breach of an agreement for which the civil remedy is available to the opposite party no. 2.5. on the other hand mr. nilesh kumar agrawal, learned counsel appearing on behalf of the opposite party no. 2 contended before me that there is no illegality in the order impugned whereby the cognizance was taken by the court below as the court below after finding prima facie case proceeded with the case in perspective way. it is further submitted that the petitioner obviously cheated the opposite party no. 2 by not making payment as per the assurance and also the cheque said to have been given as security could not be encashed because of stop payment instructions.6. on perusal, obviously there was an understanding between the parties and it is also the admitted position that the petitioner has failed.....

Full Judgment

ORDER

Deoki Nandan Prasad, J.

1. The petitioner has filed this application for quashing the order dated 9-2-2000 passed by Shri P. Kumar, Judicial Magistrate, Ranchi in Protest Petition No. 584 of 1999 whereby and whereunder the learned Magistrate took cognizance of the offence under Sections 406 and 420 of the Indian Penal Code in connection with Kotwali P.S. Case No. 67 of 1999 arising out of Complaint Case No. 114 of 1999.

2. The prosecution case in brief as alleged that the opposite party No. 2 filed a complaint in the Court of the Chief Judicial Magistrate, Ranchi on 18-2-1999 which was sent to the police for registration and investigation under Section 156(3) of the Code of Criminal Procedure (the Code) and it was alleged that the petitioner and opposite party No. 2 are both traders. The petitioner approached opposite party No. 2 on 27-4-1998 for supply of good quality of wheat for his Unit, namely, M/s. Ambika Wheat Product Private Limited and promised to pay commission at the rate of Rs. 3/- per bag of wheat. The petitioner has given security as post dated blank cheques to opposite party No. 2 and, accordingly, the wheat was supplied to the petitioner for a total sum of Rs. 29,69,902/- out of which the petitioner has paid a sum of Rs. 16,77,556/- to opposite party No. 2 and the balance amount of Rs. 12,83,346/- could not be paid to him in spite of several reminders. The opposite party No. 2 had presented post dated cheques given to him by the petitioner as security, but on account of stop payment instructions, the said cheques could not be honoured.

3. The police investigated into the case but submitted final report stating that the dispute is of civil nature and thereafter a protest petition was filed which was treated to be a complaint by the Court below. The opposite party/complainant was examined on solemn affirmation and the witnesses were also examined under Section 202 of the Code. After hearing, the learned Court below took cognizance of the offence under Sections 406 and 420 of the Indian Penal Code against the petitioner, hence this application:

4. Mr. B. M. Tripathi, learned counsel appearing on behalf of the petitioner submitted that the learned Court below committed error in taking cognizance without applying his minds as the dispute is of civil nature and had there been any dues for supply of the wheat, the opposite party No. 2 would get the relief from the Civil Court by filing money suit and there is only dispute as regards to sub-standard quality of wheat which followed by disagreement in settling the financial account. It is further argued that the offences under Sections 420 and 406 of the Indian Penal Code are not applicable in the instant case as the business dealing was going on between the parties under an agreement and, therefore, the question is merely in respect of a breach of an agreement for which the civil remedy is available to the opposite party No. 2.

5. On the other hand Mr. Nilesh Kumar Agrawal, learned counsel appearing on behalf of the opposite party No. 2 contended before me that there is no illegality in the order impugned whereby the cognizance was taken by the Court below as the Court below after finding prima facie case proceeded with the case in perspective way. It is further submitted that the petitioner obviously cheated the opposite party No. 2 by not making payment as per the assurance and also the cheque said to have been given as security could not be encashed because of stop payment instructions.

6. On perusal, obviously there was an understanding between the parties and it is also the admitted position that the petitioner has failed to pay the dues amount as per understanding and the cheques said to have been given as security could not be encashed due to stop payment instructions made by the petitioner which apparently indicates about the cheating on the part of the petitioner.

7. It is well settled that even if final report is submitted by the police, the Magistrate is empowered to proceed with the case on the basis of the protest petition if he finds sufficient material and prima facie case for proceeding in the matter. Witnesses examined during inquiry are consistent in their deposition. It is also settled that criminal proceedings cannot be thwarted merely because civil remedy is also available. The allegations as made out in the complaint sufficiently constitute the offences. If on the basis of an allegation, a prima facie case is made out then this Court should be reluctant to quash the proceeding. The Court below after finding the prima facie case took cognizance of the offence by the order impugned which does not require to be interfered with.

8. Thus I do not find any merit in this application which is, accordingly dismissed.

Same Court & Year Jharkhand · 2002 Same Parties Ashok Kumar Kejriwal vs State of Jharkhand Same Subject Criminal Same Judge Deoki Nandan Prasad, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1974 - Sections 190; Indi...

Criminal