Bhushan Bishambhar Barma @ Bhushan Barma Son of Late Bishambhar Barma, Vs. the State of Bihar and Dr. Mumtazul Hassan S/O Late Dr. Zahirul Hassan - Court Judgment

Excerpt:
negotiable instruments act, 1881-section 138-dishonour of cheques- cognizance-cheques were issued knowing full well that there is no amount in bank-plea that amount given was not loan but for financing film to be produced but complainant did not provide subsequent finance and demanded back money-reason given for dishonour of cheque by itself would amount to offences under section 420 ipc and under section 138-application dismissed. indian penal code, 1860-sections 406/420 read with section 138 of negotiable instruments act, 1881-criminal breach of trust and cheating-heavy sum of rs. 24,50,000/- given to petitioners by complainant with assurance from petitioners to return the same-cheque issued towards repayment dishonoured-dishonour of cheques by itself would amount to offences under section s 420 and 138-no illegality in impugned orders taking cognizance and issuing arrest warrant-claim and counter claim of parties call for looking into disputed facts which cannot be decided at this stage without leading of cogent. - orderabhijit sinha, j.1. both these cases have been taken up together as the parties thereto are the same and the points in issue also happen to be the same and having been heard together are being disposed of by this common order.2. in cr. misc. no. 57813 of 2007 the petitioners have prayed for quashing of the entire criminal proceeding arising out of complaint case no. 2864(c) of 2006 including the order dated 11.6.2007 passed therein by sri manoj kumar no. 2, judicial magistrate, 1st class, patna, whereby cognizance has been taken under section 420 ipc and 138 of the negotiable instruments act (hereinafter referred to as 'the n.i. act') against the three accused.3. in cr. misc. no. 4198 of 2008 the same set of petitioners have prayed for the quashing of the entire criminal prosecution arising out complaint case no. 3252(c) of 2006 including the order dated 15.6.2007 passed by sri a.k. singh, judicial magistrate, 1st class, patna, whereby cognizance has been taken under sections 406/420 ipc and 138 n.i. act as also order dated 12.1.2008 passed by sri d.k. singh, judicial magistrate, 1st class, patna, whereby non bailable warrants have been issued against the petitioners.4. the facts necessary for arriving at a proper decision may be briefly noticed:cr. misc. no. 57813 of 20075. one dr. mumtazul hassan, impleaded herein as o.p. no. 2, filed complaint case no. 2864(c) of 2006 inter alia stating that in the background of friendly relationship with the complainant, petitioner nos. 1 and 2 persuaded him to provide a friendly loan of rs. 20,00,000/- in addition to rs. 4,50,000/- on the plea of personal necessity in order to take care of their business running in the name and design of 'm/s sun flag universal' (petitioner no. 3). it is said that the complainant in good faith issued cheques of the said amount of rs. 20,00,000/- in favour of petitioner no. 2, which was encashed and the further sum of rs. 4,50,000/- was also paid to the petitioners in several instalments. the complainant had been assured of refund of the said amount soon and the accused also assured to give cheques of the said amount. it is alleged that two post dated cheques one for rs. 4,50,000/- and the other for rs. 20,00,000/- drawn on punjab and sind bank, juhu, mumbai, dated 17.7.2006 and 17.8.2006 respectively were handed over to the complainant with assurance that those cheques on being presented on or after their due dates would be encashed as there would be sufficient funds in the bank account to honour those cheques. however, it is alleged that when the cheque dated 17.7.2006 for rs. 4,50,000/- was presented to the bank for encashment it was dishonoured and intimation thereof was given to the complainant on 8.8.2006. accordingly a demand notice through lawyer was given to the accused persons on 22.8.2006 through registered post with a.d. with a request to make payment of the amount of cheque within 15 days which was received by the accused persons on 28.8.2006 but notwithstanding the expiry of statutory period of 15 days from the date of receipt of notice the accused persons did not make payment and telephonic contact as also complainant's visit to the accused with request to repay the amount was avoided on one pretext or the other and eventually they refused to make payment. it is further submitted that the second cheque for rs. 20,00,000/- was presented for encashment on 17.6.2006 which met with the same fate. on the aforesaid premise the complainant felt cheated by the accused persons and by deceit and fraud had misappropriated rs. 24,50,000/- from the complainant with no intention to refund the same.cr. misc. no. 4194 of 20086. the same complainant filed complaint case no. 3252(c) of 2006 on similar facts and this case was based on dishonour of cheque no. 716277 of the value of rs. 20,00,000/- the information whereof was sent to the complainant on 5.9.2006 and demand notice through a lawyer dated 18.9.2006 was sent by registered post on 19.9.2006 and notwithstanding assurances over telephone by the accused the money was never paid.7. the submissions on behalf of the learned counsel for the petitioners in both cases is that the instant cases had been filed in a sinister design with a view to ruin their reputation and standing in the society as also to sabotage their vital business prospects by suppressing the true and material facts and circumstances. in this connection it was submitted that petitioner no. 1 is engaged in the business of film production / marketing at mumbai and no prior acquaintance or friendship or any kind of relationship existed between the complainant and petitioner nos. 1 and 2 and as a matter of fact both the petitioners were strangers to the complainant and they had been introduced to the complainant by one sudhanshu mauli tripathi with the intention of bringing both parties close to each other in order to establish business relationship between the parties. it is submitted that sudhanshu mauli tripathi whose name appears as witness no. 1 in both the complaint petitions, in lieu of striking business relationship had demanded a role in the forthcoming films to be launched by petitioner no. 1, is an employee of the state bank of india and being interested in films had acted in small roles in some films and in this connection he had entered into an agreement dated 19.4.2004 with petitioner no. 3, the proprietorship firm of petitioner no. 1, to act as one of the villains in production nos. 1 and 2 against which he had been paid a signing amount of rs. 51,000/-.8. it is also submitted that in lieu of issue of the four cheques amounting rs. 20,00,000/- in favour of petitioner no. 2 the complainant not only put forth the condition of launching his son into the film industry in his forth coming films but also got executed and registered a deed of mortgage dated 1.3.2004 in his favour whereby the house of the petitioner nos. 1 and 2 and office of petitioner no. 3 in mumbai was sought to be mortgaged. in the said mortgage deed a condition of 8% share in the profit accruing out of the profit and business of the forthcoming films which were going to be financed by the complainant was also inserted. the said mortgage deed is said to have been executed by petitioner no. 2 in favour of the complainant as the said property and office stood in her name. it is further submitted that against the aforesaid background the petitioners agreed to receive a sum of rs. 20,00,000/- by way of cheques and a further sum of rs. 4,50,000/- by way of cash and in return the petitioners were obliged to launch the son of the complainant, sayeed mumtaz hassan, in their forthcoming two films. in addition to launching and introducing the son of the complainant in lieu of financing the said film to the tune of rs. 50,00,000/- sundhanshu mauli tripathi also put forth a condition that he will have to be cast in some role in the forthcoming films in lieu of playing the role of mediator / broker in bringing the two parties together.9. it is submitted that the complainant after formal launch of the film reverted back from his promise and assurances as also mutually agreed terms and conditions and declined to provide finance and co-operate with the progress of the shootings thereby causing serious financial loss to the petitioners in addition to mental torture and erosion in social prestige. since the petitioners refused to cast the son of the complainant in the lead role as 'hero' the complainant became aggrieved and started pressuring the petitioners to refund the said amount at the earliest and also threatened them of not returning back the original papers of the mortgaged property. it is further submitted that it was under compulsion that the petitioner no. 1 had issued the two cheques worth rs. 4,50,000/- and rs. 20,00,000/- respectively only to defuse the tension knowing full well that the said amount was not available in his account hoping that the things will be sorted out and the original papers would be returned.10. the learned counsel for the petitioners has sought to palce reliance on the decisions of all cargo mover (i) pvt. ltd. v. dhyanesh badarmal jain reported in 2008 (1) pljr 51 (sc) and inder mohan goswami v. the state of uttaranchal reported in 2008 (1) pljr 82 (sc) and has submitted that there is nothing in the complaint to show that there had been any dishonest or fraudulent intention on the part of the petitioners while making the promise to repay the amount received from the complainant and that the criminal prosecution should not be used as an instrument of harassment or for seeking private vendetta or with ulterior motive to pressurize them. it was also submitted that the allegation made in the complaint even at its face value did not disclose any offence and in view of the judgment in all cargo mover (i) pvt. ltd. case (supra) this court could look into the documents filed by the petitioners to serve the ends of justice.11. in the instant cases admittedly a sum of rs. 24,50,000/- was given to the petitioners by the complainant. the reasons for the said amount being given differs in content inasmuch as whereas the case of the complainant is that it had been given by way of loan, the case of the accused was that the same had been given by way of financing the film produced by them and to launch the son of the complainant. whatever the reason for the amount being given to the petitioners the fact remains that the said amount had been received by them with an assurance to return the same at the earliest and knowing full well that they did not have the required amount in their account cheques had been issued which had been dishonoured by the bank for want of sufficient funds. the pleading herein by the learned counsel for the petitioners that the cheques were issued to tide over the tension could never be a ground to justify bouncing of the cheques and even when legal notice from the complainant had been received by them they took no action to undo the wrong or make efforts to pacify the complainant. the reasons given by the learned counsel for the petitioners for dishonour of the cheques by itself would amount to offences under section 420 ipc and 138 n.i. act.12. there is another aspect of the matter. the claim and counter claim of the parties call for looking into disputed facts which cannot be decided without leading of cogent evidence and cannot be decided at this stage.13. in that view of the matter i find no apparent illegality in the impugned orders of the two cases and continuance of the criminal proceeding cannot be termed as an abuse of the process of the court.14. for the reasons stated above i find no merit in these applications which are dismissed.

Judgment:
ORDER

Abhijit Sinha, J.

1. Both these cases have been taken up together as the parties thereto are the same and the points in issue also happen to be the same and having been heard together are being disposed of by this common order.

2. In Cr. Misc. No. 57813 of 2007 the petitioners have prayed for quashing of the entire criminal proceeding arising out of Complaint Case No. 2864(C) of 2006 including the order dated 11.6.2007 passed therein by Sri Manoj Kumar No. 2, Judicial Magistrate, 1st Class, Patna, whereby cognizance has been taken under Section 420 IPC and 138 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I. Act') against the three accused.

3. In Cr. Misc. No. 4198 of 2008 the same set of petitioners have prayed for the quashing of the entire criminal prosecution arising out Complaint Case No. 3252(C) of 2006 including the order dated 15.6.2007 passed by Sri A.K. Singh, Judicial Magistrate, 1st Class, Patna, whereby cognizance has been taken under Sections 406/420 IPC and 138 N.I. Act as also order dated 12.1.2008 passed by Sri D.K. Singh, Judicial Magistrate, 1st Class, Patna, whereby non bailable warrants have been issued against the petitioners.

4. The facts necessary for arriving at a proper decision may be briefly noticed:

Cr. Misc. No. 57813 of 2007

5. One Dr. Mumtazul Hassan, impleaded herein as O.P. No. 2, filed Complaint Case No. 2864(C) of 2006 inter alia stating that in the background of friendly relationship with the complainant, petitioner Nos. 1 and 2 persuaded him to provide a friendly loan of Rs. 20,00,000/- in addition to Rs. 4,50,000/- on the plea of personal necessity in order to take care of their business running in the name and design of 'M/s Sun Flag Universal' (petitioner No. 3). It is said that the complainant in good faith issued cheques of the said amount of Rs. 20,00,000/- in favour of petitioner No. 2, which was encashed and the further sum of Rs. 4,50,000/- was also paid to the petitioners in several instalments. The complainant had been assured of refund of the said amount soon and the accused also assured to give cheques of the said amount. It is alleged that two post dated cheques one for Rs. 4,50,000/- and the other for Rs. 20,00,000/- drawn on Punjab and Sind Bank, Juhu, Mumbai, dated 17.7.2006 and 17.8.2006 respectively were handed over to the complainant with assurance that those cheques on being presented on or after their due dates would be encashed as there would be sufficient funds in the bank account to honour those cheques. However, it is alleged that when the cheque dated 17.7.2006 for Rs. 4,50,000/- was presented to the bank for encashment it was dishonoured and intimation thereof was given to the complainant on 8.8.2006. Accordingly a demand notice through lawyer was given to the accused persons on 22.8.2006 through registered post with A.D. with a request to make payment of the amount of cheque within 15 days which was received by the accused persons on 28.8.2006 but notwithstanding the expiry of statutory period of 15 days from the date of receipt of notice the accused persons did not make payment and telephonic contact as also complainant's visit to the accused with request to repay the amount was avoided on one pretext or the other and eventually they refused to make payment. It is further submitted that the second cheque for Rs. 20,00,000/- was presented for encashment on 17.6.2006 which met with the same fate. On the aforesaid premise the complainant felt cheated by the accused persons and by deceit and fraud had misappropriated Rs. 24,50,000/- from the complainant with no intention to refund the same.

Cr. Misc. No. 4194 of 2008

6. The same complainant filed Complaint Case No. 3252(C) of 2006 on similar facts and this case was based on dishonour of cheque No. 716277 of the value of Rs. 20,00,000/- the information whereof was sent to the complainant on 5.9.2006 and demand notice through a lawyer dated 18.9.2006 was sent by registered post on 19.9.2006 and notwithstanding assurances over telephone by the accused the money was never paid.

7. The submissions on behalf of the learned Counsel for the petitioners in both cases is that the instant cases had been filed in a sinister design with a view to ruin their reputation and standing in the society as also to sabotage their vital business prospects by suppressing the true and material facts and circumstances. In this connection it was submitted that petitioner No. 1 is engaged in the business of film production / marketing at Mumbai and no prior acquaintance or friendship or any kind of relationship existed between the complainant and petitioner Nos. 1 and 2 and as a matter of fact both the petitioners were strangers to the complainant and they had been introduced to the complainant by one Sudhanshu Mauli Tripathi with the intention of bringing both parties close to each other in order to establish business relationship between the parties. It is submitted that Sudhanshu Mauli Tripathi whose name appears as witness No. 1 in both the complaint petitions, in lieu of striking business relationship had demanded a role in the forthcoming films to be launched by petitioner No. 1, is an employee of the State Bank of India and being interested in films had acted in small roles in some films and in this connection he had entered into an agreement dated 19.4.2004 with petitioner No. 3, the proprietorship firm of petitioner No. 1, to act as one of the villains in production Nos. 1 and 2 against which he had been paid a signing amount of Rs. 51,000/-.

8. It is also submitted that in lieu of issue of the four cheques amounting Rs. 20,00,000/- in favour of petitioner No. 2 the complainant not only put forth the condition of launching his son into the film industry in his forth coming films but also got executed and registered a deed of mortgage dated 1.3.2004 in his favour whereby the house of the petitioner Nos. 1 and 2 and office of petitioner No. 3 in Mumbai was sought to be mortgaged. In the said mortgage deed a condition of 8% share in the profit accruing out of the profit and business of the forthcoming films which were going to be financed by the complainant was also inserted. The said mortgage deed is said to have been executed by petitioner No. 2 in favour of the complainant as the said property and office stood in her name. It is further submitted that against the aforesaid background the petitioners agreed to receive a sum of Rs. 20,00,000/- by way of cheques and a further sum of Rs. 4,50,000/- by way of cash and in return the petitioners were obliged to launch the son of the complainant, Sayeed Mumtaz Hassan, in their forthcoming two films. In addition to launching and introducing the son of the complainant in lieu of financing the said film to the tune of Rs. 50,00,000/- Sundhanshu Mauli Tripathi also put forth a condition that he will have to be cast in some role in the forthcoming films in lieu of playing the role of mediator / broker in bringing the two parties together.

9. It is submitted that the complainant after formal launch of the film reverted back from his promise and assurances as also mutually agreed terms and conditions and declined to provide finance and co-operate with the progress of the shootings thereby causing serious financial loss to the petitioners in addition to mental torture and erosion in social prestige. Since the petitioners refused to cast the son of the complainant in the lead role as 'Hero' the complainant became aggrieved and started pressuring the petitioners to refund the said amount at the earliest and also threatened them of not returning back the original papers of the mortgaged property. It is further submitted that it was under compulsion that the petitioner No. 1 had issued the two cheques worth Rs. 4,50,000/- and Rs. 20,00,000/- respectively only to defuse the tension knowing full well that the said amount was not available in his account hoping that the things will be sorted out and the original papers would be returned.

10. The learned Counsel for the petitioners has sought to palce reliance on the decisions of All Cargo Mover (I) Pvt. Ltd. v. Dhyanesh Badarmal Jain reported in 2008 (1) PLJR 51 (SC) and Inder Mohan Goswami v. The State of Uttaranchal reported in 2008 (1) PLJR 82 (SC) and has submitted that there is nothing in the complaint to show that there had been any dishonest or fraudulent intention on the part of the petitioners while making the promise to repay the amount received from the complainant and that the criminal prosecution should not be used as an instrument of harassment or for seeking private vendetta or with ulterior motive to pressurize them. It was also submitted that the allegation made in the complaint even at its face value did not disclose any offence and in view of the judgment in All Cargo Mover (I) Pvt. Ltd. case (supra) this Court could look into the documents filed by the petitioners to serve the ends of justice.

11. In the instant cases admittedly a sum of Rs. 24,50,000/- was given to the petitioners by the complainant. The reasons for the said amount being given differs in content inasmuch as whereas the case of the complainant is that it had been given by way of loan, the case of the accused was that the same had been given by way of financing the film produced by them and to launch the son of the complainant. Whatever the reason for the amount being given to the petitioners the fact remains that the said amount had been received by them with an assurance to return the same at the earliest and knowing full well that they did not have the required amount in their account cheques had been issued which had been dishonoured by the Bank for want of sufficient funds. The pleading herein by the learned Counsel for the petitioners that the cheques were issued to tide over the tension could never be a ground to justify bouncing of the cheques and even when legal notice from the complainant had been received by them they took no action to undo the wrong or make efforts to pacify the complainant. The reasons given by the learned Counsel for the petitioners for dishonour of the cheques by itself would amount to offences under Section 420 IPC and 138 N.I. Act.

12. There is another aspect of the matter. The claim and counter claim of the parties call for looking into disputed facts which cannot be decided without leading of cogent evidence and cannot be decided at this stage.

13. In that view of the matter I find no apparent illegality in the impugned orders of the two cases and continuance of the criminal proceeding cannot be termed as an abuse of the process of the Court.

14. For the reasons stated above I find no merit in these applications which are dismissed.