Munna Vs. State and anr. - Court Judgment

Excerpt:
code of criminal procedure, 1973 - section 482--indian penal code, 1860--section 420--offence of cheating--cognizance of offence--quashing of--accused purchased plywood laminated, glass and sunmlca worth rs. 153,658.82 and paid only rs. 105,000/- and for balance amount promised to pay by 10-3-2002--accused failed to pay said dues after demanding several times--complaint filed--court below took cognizace for offence under section 420, ipc--no allegation was made in complaint about committing cheating as well as said due was in respect of simple transaction about purchase and sale of articles--allegation found to be of civil nature--court below committed error in taking cognizance of offence under section 420, ipc which would be liable to be quashed. - constitution of india article 215: [m. karpaga vinayagam, cjm, .y.eqbal & amareshwar sahay, r.k. merathia, narendra nath tiwari, jj] contempt proceedings review powers of high court held, article 215 of the constitution vests the high court with all the powers of court of record including the power to punish for its contempt. this special jurisdiction is inherent in a court of record from the very nature of the court itself. the said special power is not subject to the procedural law either of the criminal procedure code or the contempt of courts act. the high court can deal with the matter summarily and can adopt its own procedure. however, if the high court initiates the proceeding as a court of record, principle of natural justice must be applied and the contemner should be given sufficient opportunity to know the accusation and to defend himself. in the instant case, the contemner was served with the notice to show cause. he was well aware of the accusation. he also admitted his guilt. in view thereof, contention of the contemner lawyer that he was not heard on merit of the contempt application and the impugned judgment of punishing petitioner in contempt of court is violative of principles of natural justice, is not tenable. article 215: contempt proceedings review of conviction held, it is the solemn duty of the bench and bar to maintain and uphold the majesty, authority and dignity of the courts for the sustenance and progress of democracy in our country particularly at the juncture when there are number of instances of outside attempt to disintegrate and destroy the democratic set up of our country. such conduct of a member of the bar brings the authority of the court and the administration of justice into disrespect, erodes and undermine the foundation of the judiciary by shaking faith and confidence of the people in the ability of the courts to deliver free and fair justice, it is a deliberate attempt to insult the high court and denigrate the authority and solemnity and court strongly deprecate such attempt made with biased attitude. such indiscriminate allegations against judges, who are the members of the bench, cannot be a ground for review of the impugned judgment. punishment of prohibiting appearance of contemner/lawyer before high court as well as courts under its jurisdiction is based on his repeated convictions for contempt in the past is not violative of article 19(g) of the constitution. no interference in exercise of review jurisdiction is warranted. - 48,000/- and odd against the petitioner, nowhere any allegation is made about committing cheating as well as apparently there appears the said dues is in respect of simple transaction about purchase and sale of the article.orderd.n. prasad, j. 1. by the court.--this application has been filed under section 482 of the code of criminal procedure for quashing the order taking cognizance dated 6.11.2001, whereby and whereunder the learned court below took cognizance for the offence under section 420, ipc in connection with complaint case no. 1015 of 2001.2. the prosecution case in brief is that the complainant opposite party no. 2 is the partner of firm m/s. kamalakant paul & sons at giridih. the said firm deals in sunmica, laminated glass, plywood, modi fload glass, modi mirror and more items. the accused/ petitioner was the authorised representative of m/s. glass king & furnishing house, bhagalpur and he used to purchase various items from the complainant's shop. it is further alleged that on 26.2.2000, the petitioner/ accused purchased plywood, glass and sun-mica worth rs. 1,53.658.82 and paid only a sum of rs. 1,05,000/- by way of demand draft and for the balance amount of rs. 48,658.82 paise the accused/petitioner promised to pay by 10.3.2000. it is further claimed that in-token of his promise, the accused petitioner signed a hand note showing balance amount of rs. 48.658.82. the complainant demanded the dues several times but the accused/ petitioner did not pay the said dues. hence, a legal notice was also issued and thereafter the complaint case was filed.an enquiry was made under section 202, cr pc and the court below took cognizance for the offence under section 420, ipc.3. the learned counsel appearing on behalf of the petitioner, at the very outset, submitted that no case under section 420, ipc is made out on the allegation as alleged, as there is no whisper or allegation about cheating and even if there is a dues of the said amount that cannot constitute an offence for cheating. it is further alleged that allegation as made out in the complaint is also of civil nature and utmost allegation against the petitioner is that he has not paid the balance amount and it is open for the complainant to realise the said amount by filing a money suit.4. on the other hand, the learned app contended before me that a dues of rs. 48,000/- and odd is lying with the accused and the accused person is not even trying to pay back the said amount.5. notice was also issued against the complainant by registered cover to which the petitioner also filed an affidavit but inspite of the notice issued to the complainant, none appeared on his behalf.6. from going through the complaint apparently there is only allegation about dues of rs. 48,000/- and odd against the petitioner, nowhere any allegation is made about committing cheating as well as apparently there appears the said dues is in respect of simple transaction about purchase and sale of the article. the allegation as made out appears to be of civil nature.7. thus. i find that the learned court below committed error in taking cognizance by the order impugned, which is fit to be quashed. in the result, i find merit in this application, which is allowed. the impugned order dated 6.11.2001 is, hereby, quashed.

Judgment:
ORDER

D.N. Prasad, J.

1. By the Court.--This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the order taking cognizance dated 6.11.2001, whereby and whereunder the learned Court below took cognizance for the offence under Section 420, IPC in connection with Complaint Case No. 1015 of 2001.

2. The prosecution case in brief is that the complainant opposite party No. 2 is the partner of Firm M/s. Kamalakant Paul & Sons at Giridih. The said firm deals in Sunmica, laminated glass, plywood, Modi fload glass, Modi mirror and more items. The accused/ petitioner was the authorised representative of M/s. Glass King & Furnishing House, Bhagalpur and he used to purchase various items from the complainant's shop. It is further alleged that on 26.2.2000, the petitioner/ accused purchased plywood, glass and sun-mica worth Rs. 1,53.658.82 and paid only a sum of Rs. 1,05,000/- by way of demand draft and for the balance amount of Rs. 48,658.82 paise the accused/petitioner promised to pay by 10.3.2000. It is further claimed that in-token of his promise, the accused petitioner signed a hand note showing balance amount of Rs. 48.658.82. The complainant demanded the dues several times but the accused/ petitioner did not pay the said dues. Hence, a legal notice was also issued and thereafter the complaint case was filed.

An enquiry was made under Section 202, Cr PC and the Court below took cognizance for the offence under Section 420, IPC.

3. The learned counsel appearing on behalf of the petitioner, at the very outset, submitted that no case under Section 420, IPC is made out on the allegation as alleged, as there is no whisper or allegation about cheating and even if there is a dues of the said amount that cannot constitute an offence for cheating. It is further alleged that allegation as made out in the complaint is also of civil nature and utmost allegation against the petitioner is that he has not paid the balance amount and it is open for the complainant to realise the said amount by filing a Money Suit.

4. On the other hand, the learned APP contended before me that a dues of Rs. 48,000/- and odd is lying with the accused and the accused person is not even trying to pay back the said amount.

5. Notice was also issued against the complainant by registered cover to which the petitioner also filed an affidavit but inspite of the notice issued to the complainant, none appeared on his behalf.

6. From going through the complaint apparently there is only allegation about dues of Rs. 48,000/- and odd against the petitioner, Nowhere any allegation is made about committing cheating as well as apparently there appears the said dues is in respect of simple transaction about purchase and sale of the article. The allegation as made out appears to be of civil nature.

7. Thus. I find that the learned Court below committed error in taking cognizance by the order impugned, which is fit to be quashed. In the result, I find merit in this application, which is allowed. The impugned order dated 6.11.2001 is, hereby, quashed.