Gauhati High Court
Akhil Chandra Kalita vs Sankar Kumar Dey on 24 October, 2019
Equivalent citations: AIRONLINE 2019 GAU 524, (2019) 204 ALLINDCAS 610, (2019) 5 GAU LT 406, (2020) 1 GAU LR 695, 2020 (206) AIC (SOC) 4 (GAU), 2020 ACD 25 (GAU)
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/9
GAHC010258892018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 1186/2018
1:AKHIL CHANDRA KALITA
S/O LATE SUREN CHANDRA KALITA, R/O BHASKAR NAGAR,
BAMUNIMAIDAM, PO BAMUNIMAIDAM, DIST. KAMRUP (M), ASSAM,
GUWAHATI-781021
VERSUS
1:SANKAR KUMAR DEY
S/O LATE NIRMAL CHANDRA DEY, R/O RANGIA TOWN, WARD NO. 7
(TINIALI), PO RANGIA, PS RANGIA, DIST. KAMRUP, ASSAM, PIN-781354
Advocate for the Petitioner : MD. B HUSSAIN
Advocate for the Respondent : MR. S P CHOUDHURY
BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR Date : 24-10-2019 JUDGMENT & ORDER Heard Mr. P.B. Mazumdar, learned counsel for the petitioner and Mr. S.P. Choudhury, learned counsel for the respondent.
2. By this petition filed under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, the petitioner has prayed for quashing of the Complaint Case No. 17/2018 under Section 138 of the Negotiable Instruments Act, 1881 filed by the respondent Page No.# 2/9 in the Court of learned Sub-Divisional Judicial Magistrate (M) at Rangia, Kamrup.
3. The petitioner's contention is that the respondent filed a complaint case being C.R. Case No. 17/2018 under Section 138 of the N.I. Act along with initial deposition on affidavit under Section 200 Cr.P.C., on 19.07.2018, in the Court of learned Sub-Divisional Judicial Magistrate (M) at Rangia, Kamrup against him alleging, inter-alia, that the petitioner executed an agreement with the respondent before the Notary Public at Rangia with a promise to sale a plot of his land measuring 3 Lechas, situated at Rangia town. Accordingly, the petitioner received Rs.18,00,000/- (Rupees Eighteen Lakhs) only in cash in two instalments from the respondent. The respondent asked the petitioner to hand over the possession of the said plot of land to him, but the petitioner refused to do so. It is further alleged in the complaint that the petitioner made another agreement with another party to sale the same plot of land. When the respondent came to know about this fact of the petitioner's cheating of him, he immediately asked the petitioner to return his said amount of Rs.18,00,000/- (Rupees Eighteen Lakhs), but the petitioner did not return. After constant persuasions, however, the petitioner issued two cheques, bearing Cheque Nos. 019259, dated 10.05.2018 for Rs.10,00,000/- (Rupees Ten Lakhs) drawn on Allahabad Bank, Rangia Dongpar Branch and cheque No. 456358 for Rs.5,00,000/- (Rupees Five Lakhs) drawn on UCO Bank, Rangia to the respondent. Further, the petitioner entered into another agreement with the respondent, on 27.05.2018 to return the remaining amount of Rs.3,00,000/- (Rupees Three Lakhs) within 15 days to the respondent. The respondent presented the aforementioned two cheques at UBI, Rangia Branch against his A/C No. 389802010004064, but the said cheques were dishonoured due to insufficient funds and accordingly returned the same with dishonoured Memos. Therefore, the respondent issued statutory notice under the provisions of Section 138(b) of the N.I. Act, which was duly served on the petitioner, on 18.06.2018. But as no response was received, the respondent filed the complaint case being C.R. Case No. 17/18 under Section 138 of the N.I. Act in the Court of learned SDJM (M) at Rangia against the petitioner. The learned SDJM (M) at Rangia, after perusal of the allegations made in the complaint petition and evidence on affidavit, being satisfied has taken cognisance of the offence under Section 138 of the N.I. Act and has issued summons to the petitioner vide order, dated 14.08.2018, which he received on 16.08.2018, without a Page No.# 3/9 copy of the complaint and list of documents asking him to appear on 14.09.2018.
4. The petitioner in his petition and Mr. P.B. Mazumdar, learned counsel appearing on his behalf, assailed the impugned order of taking cognisance of the offence under Section 138 of the N.I. Act denying all the alleged transactions between the petitioner and the respondent terming the complaint is based on false and fabricated story and further, that the complaint is not tenable in law as the respondent did not obtain necessary sanction to prosecute the petitioner, who is a Central Government employee, working as Member, Railway Claims Tribunal, Guwahati Bench. Mr. Mazumdar also submitted that if the allegations made in the complaint are taken at their face value, those do not make out any case against the petitioner nor there is any whisper in the complaint against him, when his cause of action arose for violation of the alleged agreement for sale and as such, the discretion exercised by the learned SDJM (M), Rangia in issuing process against the petitioner, on 14.08.2018, is capricious, and arbitrary and also when a civil suit being T.S. No. 318/2018, instituted by the petitioner, is pending in the Court of the learned Civil Judge No. 2, Kamrup(M) at Guwahati praying for a decree for declaration that the alleged Deed of Agreement of Sale, dated 19.12.2015, was fake, fabricated and coercive.
5. The respondent in his affidavit-in-opposition stated and Mr. S.P. Choudhury, learned counsel appearing on his behalf, vehemently opposed the submissions made by the learned counsel of both sides. Mr. Choudhury submitted, inter-alia, that the core issue involved in the complaint case is the dishonour of cheques issued by the petitioner in discharge of his legally enforceable debt to the respondent and as the petitioner has denied in the instant proceeding all the allegations made against him, those are disputed facts which cannot be finally adjudicated in a petition under Section 482 Cr.P.C., where this Court does not sit as an appellate Court to decide the disputed questions of fact and law. Mr. Choudhury, learned counsel for the respondent, further submitted that issuance of cheques and subsequent dishonour would carry a presumption in favour of the holder, that is, the complainant/respondent. Regarding the petitioner's contention that no sanction contemplated in Section 197 Cr.P.C. was obtained prior to filing of the case, Mr. Choudhury submitted that the said case is filed for commission of offence by the petitioner in his personal capacity, not connected to his discharge of official duty as Member, Railway Claims Page No.# 4/9 Tribunal, Guwahati Bench and on the other hand, when the Title Suit being T.S. No. 318/2018 is instituted by the petitioner, after the complaint case was filed by the respondent. Mr. Choudhury, learned counsel for the respondent, therefore, submitted that the offence committed by the petitioner, in the backdrop of facts of the case and even on the face value of the allegations made in the complaint is not civil in nature and as such, the complaint case cannot be quashed as prayed.
6. I have considered the above submissions made by the learned counsel of both sides and perused the records including the copy of the relevant documents annexed to the petition.
7. For the sake of proper appreciation of the above matter, it is apposite to extract hereinbelow the most relevant paragraphs of the complaint:
"(2) That the complainant begs to state that the above named accused person when he was working at Rangia in OS/E/RNY under Sr.DPO/ Rny, N.F. Railway on 29-12-2015 he executed an agreement with the complainant which was duly registered by the Notary Public, Rangia with a promise to sale a plot of land measuring 13 lechas, covered by Dag No. 67, 68, 69 and K.P. No. 56/57 situated at Rangia Town, Ward No- 7, Mouza- Panduri, P.S.- Rangia, under Rangia Revenue Circle, Dist- Kamrup (Assam) Boundred by North:-
Accused himself, South- P.W.D. Road, East:- Bhaben Das West :- Chandan Upadhay and accordingly the accused received a total amount of Rs. 18,00,000/- (Rupees Eighteen Lakhs) only in cash in two instalment from the complainant in presence of witnessess namely (i) Sri Raben Baishya and Sri Ajoy Kumar Dey. Thereafter the complainant asked the accused person to hand over the possession of the said land to him but the accused person refused to do so. As because the accused person made and another agreement with one other party to sale the same land. Thereafter when the complainant came to know that the accused person cheated him and the accused persons received his money with dishonestly induced him deceived to delivered him then the complainant immediately asked the accused person to returned his amount of Rs. 18,00,000/- (Rupees Eighteen Lakhs) only. But till today the accused person did not return the complainant a single coin.
(3) That, the complainant begs to state that again he had approached the accused Page No.# 5/9 person and had demanded for the said amount of Rs. 18,00,000/- (Rupees Eighteen Lakhs) only in cash but the accused person again ignored the complainant for repaying the said amount by taking this or that plea. And thereafter the complainant again on many occasions had made request and demands to the accused to repay the said amount and at last the accused person in due discharge of the liabilities for legally enforceable debt payable by him issued 2(two) numbers of Cheques (1) Bearing Cheque No. 019259 dtd. 10-05-2018 for Rs.
10,00,000/- (Rupees Ten Lakhs) only drawn on Allahabad Bank, Rangia Dongpar Branch, Rangia 781354 and (2) Bearing Cheque No. 456358 Dated 10-05-2018 for Rs. 5,00,000/- (Rupees Five Lakhs) only drawn on UCO Bank Rangia Branch, Rangia 781354 to the complainant after signing the same before the complainant and the above named witnesses by the accused person to pay off his due libelities payable to the complainant for legally enforceable debts payable by him. The accused person had also executed an agreement with the complainant on 27-05-2018 with a promise to return the remaining arear amount of Rs. 3,00,000/- (Rupees Three Lakhs) only within next 15 days to the complainant in presence of the witnesses.
(4) That, the complainant deposited the said cheques, Vide Cheque No. 019259 dtd. 10-05-2018 for Rs. 10,00,000/- (Rupees Ten Lakhs) only of Allahabad Bank Rangia Dongpar Branch Bearing A/C No. 50197023735 and Vide Cheque No. 456358 Dated 10-05-2018 for Rs. 5,00,000/- (Rupees Five Lakhs) only of UCO Bank Rangia Branch Bearing Account No. 07360110015261 issued by the accused person in his account of Union Bank of India, Rangia Branch, Vide A/C No. 389802010004064 on dated. bearing Account No. 07360110015261 within the period of its validity with a deposit slip for encashment of the said cheques amount, but the said cheques were surprisingly dishonoured due to "INSUFFICIENT FUNDS" and accordingly the bankers of the complainant returned the said cheques to the complainant along with one cheque returned memo/dishonour memo of each cheque dtd. 08-06-2018 issued by the accused person's banker showing the reason of dishonour of cheque as "INSUFFICIENT FUND".
(5) That, after getting information from the concerning Banks regarding the dishonour of the said cheques and receiving the said cheques with cheque return memo the complainant immediately sald a statutory notice under the provisions of section 138 (b) of Page No.# 6/9 the N.I. Act 1881 to the accused person by registered A/D post on dated 15-06-2018 through his advocate, calling upon the accused person to pay the said cheque amount within 15 (fifteen) days from the date of receipt of the said notice and the said notice was duly served on the accused person on dated 18-06-2018. And even after having receipt of the said notice, the accused person had not paid the said amount of the said dishonour cheques. Hence the date of cause of action has started on 03-07-2018 after 15 days from date of receipt of the said notice. The accused person has not cared to make payment of the said cheques amount in spite of repeated requests and demands being made upon him by the complainant on several occasions.
(6) That, the accused had intentionally issued the said cheques in favour of the complainant in order to cheat and defraud the complainant and without any intention on his part to repay the complainant, had issued the aforesaid cheques knowing it fully well that it was bound to be dishonoured on account of "INSUFFICIENT FUND" in the said accounts of the accused person with his said banker within the period of its validity at the very time of issuing the said cheques in favour of the complainant and as such the accused person has dishonestly cheated the complainant with his ill motive and dishonest intention and for his wrongful gain and wrongful loss to the complainant and it seems that he has no intention to pay the said cheques amount to the complainant with his dishonest intention."
8. The above allegations made in the complaint prima facie go to show that the cheques in question were issued by the petitioner in favour of the respondent in discharge of part of the legally enforceable debt or liability that arose out of sale transactions of a plot of land and when presented for encashment, within their specific validity period, the concerned banks returned unpaid for insufficient fund standing to the credit of the petitioner's account. It is further alleged that the respondent gave notice of dishonour of the said cheques, within the prescribed statutory period to the drawer petitioner, but he failed to make payment.
9. On consideration of the above facts disclosed in the complaint and the evidence on affidavit supported by the relevant documents, the learned SDJM (M), Rangia, Kamrup having found prima facie case against the petitioner under Section 138 of the N.I. Act, by order, dated 14.08.2018, took cognisance of the aforesaid offence against him. The said order reads as hereinbelow extracted-
Page No.# 7/9 "14.08.2018 The complainant Sankar Dey is present.
Heard the Learned Counsel for the complainant.
Perused the Case Record and the Initial Deposition on Affidavit of the complainant along with the annexures.
On such hearing and perusal it appears that, prima-facie this Court has jurisdiction to try this case and the case is filed within stipulated time frame.
From perusal of the materials placed before me it transpires that, there is sufficient ground to proceed u/s 138 of Negotiable Instrument Act, 1881, against the accused Akhil Chandra Kalita. Hence, issue summons to the accused person.
The complainant to take steps within next three (3) days.
Fix 14-9-2018 for appearance, report."
10. Here, it needs to refer to Section 139 of the N.I. Act, which reads as follows:
"139. Presumption in favour of holder. - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
11. The presumption mandated by Section 139 of the N.I. Act is a rebuttable presumption requiring the accused/petitioner herein to raise his defence, where the existence of a legally enforceable debt or liability can be contested, but at the initial stage of the complaint, the presumption favours the complainant/respondent herein.
12. In Sonu Gupta Vs Deepak Gupta & Ors., reported in (2015) 3 SCC 424, the Supreme Court in Para 8 of the judgment, held as under:
"8.At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to taken cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or Page No.# 8/9 arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."
13. In Paramjeet Batra Vs State of Uttarakhand & Ors., reported in (2013) 11 SCC 673, the Apex Court, in para 12 of the judgment held as hereinbelow extracted:
"12.......... Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."
14. Undoubtedly, as prima facie disclosed in the complaint, there was monetary transactions between the respondent and the petitioner pertaining to sale of a valuable plot of land in Guwahati city by the petitioner, the owner of the land to the respondent/buyer pursuant to sale agreement and from this angle this was initially a civil transaction in nature. But subsequently as the question of dishonour of cheques issued by the petitioner to the respondent arose, the complaint under Section 138 of the N.I. Act came to be filed by the respondent against him on 19.07.2018. It was, thereafter, the petitioner instituted T.S. No. 318/2018, on 07.08.2018, against the respondent in the Court of learned Civil Judge No. 2, Kamrup (M) at Guwahati for a decree declaring the Deed of Agreement for Sale of Land, dated 29.12.2015, as null and void and for declaration that there was no any agreement or legally enforceable debt or liability to pay to the respondent.
15. The aforesaid two proceedings, one criminal action and the other civil action are under different remedies and differ in their contents and consequences. As such, pendency of a civil suit which was instituted later in point of time, is not a bar to continue the prosecution under Section 138 of the N.I. Act and can run side by side over the same subject matter.
16. The only question to be considered at this stage is whether the complaint and its Page No.# 9/9 accompaniments disclose any prima facie case under Section 138 of the NI Act against the petitioner and not whether the complaint made against the petitioner is true or not, which are questions, that can be determined only after trial of the case. While taking cognisance of the offence, allegations so made in the complaint have to be taken on their face value and the defence cannot be looked into in a petition under Section 482 Cr.P.C.
17. In Sau. Kamal Shivaji Pokarnekar Vs. State of Maharashtra & Ors. in Criminal Appeal No. 255 of 2019, the ratio of which is applicable to the instant case, the apex Court held in Para 9 of the judgment as hereinbelow extracted:
".............The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."
18. With regard to requirement of obtaining of previous sanction under Section 197 Cr.P.C. to prosecute the petitioner, who is a very high public servant, being Member, Railway Claims Tribunal, Guwahati Bench, this Court is of the considered opinion that the sanction of prosecution is not necessary, when the alleged offence under Section 138 of the N.I. Act committed by him is in personal capacity and not in course of discharge of his official duty.
19. For the reasons, set forth above, the petition being devoid of any merit in law and facts, the same is dismissed.
20. The interim order of stay of proceeding, dated 28.11.2018 is hereby vacated. Both the parties shall appear before the learned trial Court on 20.11.2019.
21. Petition stands disposed of.
JUDGE Comparing Assistant