Jharkhand High Court
Suresh Kumar Tekriwal vs State Of Jharkhand And Ors. on 5 October, 2005
Equivalent citations: [2006(1)JCR158(JHR)], 2006 (1) AIR JHAR R 340, (2005) 4 EASTCRIC 394, (2006) 1 JLJR 152, (2006) 1 JCR 158 (JHA)
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
ORDER Amareshwar Sahay, J.
1. Heard the learned Counsel for the parties.
2. In the present application the petitioner has prayed for quashing of the order dated 17.3.2005 taking cognizance of the offences under Sections 420, 406, 467, 468, 469 and 471/34 of the Indian Penal Code, passed by the Chief Judicial Magistrate, Bokaro and also the entire criminal proceeding being C.P. Case No. 325 of 2002 pending before the Chief Judicial Magistrate, Bokaro.
3. The relevant facts are that the O.P. No. 2 herein, namely, Bierndra Singh filed a complaint case before the Chief Judicial Magistrate, Bokaro against the three persons namely, Suresh Kumar Tekriwal, the petitioner herein, C. Ravi, the then Manager of Vijaya Bank, Naya More Branch, Bokaro Steel City and H.D. Hedge, Manager, Vijaya Bank, Naya More Branch, Bokaro Steel City. The said complaint was registered as C.P. Case No. 325/2002.
4. The case of the complainant as stated in the complaint petition in short is that the complainant was an employed person, the accused Suresh Kumar Tekriwal, i.e. the petitioner herein, approached him in the year 1990 and proposed to start a joint business and thereby induced the complainant to invest amount in their business. The complainant believing the statement of the accused Suresh Kumar Tekriwal in good faith agreed to do partnership business with him and invested a huge amount in the business. He entered into the business of partnership and several partnership firms were constituted between the complainant and the accused Suresh Kumar Tekriwal, including M/s. Savita Iron and Steel Processor and in due course of time, other eight partnership firms were also constituted. The names of which have been mentioned in the complaint petition. It is alleged that according to the terms of partnership agreement, relating to Akashay Steels, as account was opened in Vijaya Bank, Naya More Branch, Bokaro Steel City which was to be operated jointly under the joint signature of both the partners but it is said that the accused No. 2, C. Ravi being the Manager of Vijaya Bank at the relevant time accepted the cheques under the single signature of Suresh Kumar Tekriwal and thereby allowed withdrawal of Rs. 17.20.789.00/- under different 48 numbers of Cheques on different dates in between 3.8.1999 to 28.2.2000. It is alleged that both the accused persons conniving with each other and in order to misappropriate the amount, with ulterior motive put the complainant in heavy loss. The accused Suresh Kumar Tekriwal withdrew such huge amount from the said Vijaya Bank with the connivance of the Branch Manager of the Bank.
It is further alleged that some dispute arose in the partnership business relating to M/s. Akshya Steel and M/s. Vishwananth Transport and thereby in pursuance of one of the conditions of the partnership the matter was referred to the Arbitrator who passed an award on 20.11.2000. However, it ended in a compromise between the partners on 1.4.2002. It is further alleged that even after filing claim before the Arbitrator the business of the partnership firm was continuing and income derived from such business were not included in the arbitration award. It is said that accused No. 1 Suresh Kumar Tekriwal, who was dealing with all the transactions, in violation of the partnership agreement and during the pendency and after the arbitration award, received a total sum of Rs. 15.26.00,000/-. It is said that as per Clause 13 of the Arbitration clause whatever amount were to be received which were not included in the arbitration dispute was to be deposited in the joint account of both the parties for distribution of the amount in equal share. But it is said that the accused Suresh Kumar Tekriwal received the amount mentioned above on different dates but he did not deposit the same in the joint account and thereby misappropriated the share of the complainant to the tune of Rs. 7,63,00,000.00/-. The accused Suresh Kumar Tekriwal did not inform the complainant before receipt of the same amount. Apart from the aforesaid amount it is said that the accused Suresh Kumar Tekriwal received a sum of Rs. 26,51,00,000.00/- on account of liasoning work which were not included in the arbitration dispute. The details of those amounts have been mentioned in the complaint petition.
It is further alleged in the complaint petition that the complainant was entitled to 50% of the amount mentioned in the complaint petition, which was misappropriated by the accused Suresh Kumar Tekriwal. There is also allegation in the complaint against the accused Suresh Kumar Tekriwal that he committed forgery in respect of purchase of land at Raipur.
In view of the above allegations it was said by he complainant in the complaint petition that the accused No. 1 Suresh Kumar Tekriwal dishonesty deliberately misappropriated the amount and also committed the offence of forgery.
5. The learned Chief Judicial Magistrate thereafter examined the complainant on solemn affirmation and also recorded the statement of three witnesses adduced on behalf of the complainant during enquiry under Section 202, Cr PC. Thereafter, the complaint was dismissed on 13.1.2000, which was challenged before this Court in Criminal Revision No, 127/2003 and ultimately, the order dismissing the complaint was set aside on the ground that at that stage the case of the defence could not have been considered and the matter was again remitted back to the Magistrate for passing a fresh order in accordance with law,
6. Against the order of the High Court passed in the aforesaid Criminal Revision No. 127/2003 Suresh Kumar Tekriwal, petitioner herein, preferred S.L.P. (Crl) No. 669/2004 before the Supreme Court in which, initially the notice was issued and then by order dated 3.2.2005 the Special Leave Petition was dismissed by repelling the contention of the petitioner in regard to his right to lead the evidence; in defence even at the stage of framing of charge, by relying on the decision of the Supreme Court in the case of Adalat Prasad v. Rooplal Jindal, 2004 (7) Scale 137. The said order of the Supreme Court has been annexed as Annexure 18 to the present application.
7. Thereafter, as it appears that the learned Chief Judicial Magistrate by the impugned order dated 17.3.2005 after considering the statements made in the complaint petition, statement of the witnesses examined during enquiry under Section 202, Cr PC and also the documents produced on behalf of the complainant, took cognizance of the offences against all the three accused named in the complaint petition including the petitioner finding prima facie case against them for the offences under Sections 420, 406, 467, 468, 469, 471/34, IPC and thereby issued summons against them for their appearance.
8. Mr. Milan Mukherjee, learned Counsel appearing for the petitioner submitted that even if the entire allegations made in the complaint petition are taken to be correct in its face value even then no case of criminal nature is made out against the petitioner and, therefore, the order taking cognizance and issuing processes against the petitioner is an abuse of the process of the Court, It was next contended that admittedly even according to the complainant there was an arbitration clause in the partnership agreement and according to that an arbitration award was passed in the year 2000 by the Arbitrator and which ultimately ended in compromise in the year 2002 and, therefore, the present case was totally a case of civil nature and no criminal offence was made out. It was submitted that there was no criminal liability at all. Lastly, it was contended that the prosecution for the offence under Section 406, IPC would not lie at the instance of the partner against the other partner of a partnership firm.
In support of his submissions he has relied on a decision in the case of Velji Raghavji Patel v. The State of Maharashtra reported in AIR 1965 SC 1433 and also in the case of State of Orissa v. Debendra Nath Padhi, reported in 2005 (2) East Cr C 66 (SC) : 2005 SCC (Cri) 415.
9. The learned Counsel for the petitioner in support of his submission has tried to demonstrate before me, by referring several documents annexed with the present application such as partnership deed, arbitration award, joint petition for compromise and compromise decree etc., that it was a simple business transaction arid was a case of civil nature.
10. On the other hand Mr. Raj an Raj, learned Counsel appearing for the complainant/O.P. No. 2 has submitted that there is no illegality in the impugned order of the learned Chief Judicial Magistrate taking cognizance of the offence against the petitioner and other accused persons and, therefore, no interference is called for by this Court at this stage.
11. By now the scope of Section 482, Cr PC for quashing the proceeding at the initial stage has already been settled by a catena of decision of the Supreme Court as well as of various High Courts in India including this Court. Recently, the Supreme Court in the case of Zandu Pharmacentual Works Ltd. v. Mohd. Sharaful Haque and Anr. reported in 2005 (1) East Cr C 52 (SC) : (2005) 1 SCC 122 has held that while exercising power under the Section the Court does not function as a Court of appeal or revision. Inherent jurisdiction under this section though is wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justice to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and, if any, attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse.
It has further been held in the said decision that when exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to Shortcircuit a prosecution and bring about its sudden death. The inherent power should not be exercised to stifle a legitimate prosecution.
12. Now coming to the decisions cited by the learned Counsel for the petitioner, in my view, the decision in the case of State of Orissa v. Devendra Nath Padhi, reported in 2005 (2) East Cr C 66 (SO : 2005 SCC (Cri) 415 is not applicable in the facts and circumstances of the present case as the question in that case was as to whether at the time of framing of charge the trial Court can consider the material filed by the accused. The Supreme Court while dealing with the provisions of Sections 227, 228, 239, 240 and 482, Cr PC held that at the said stage of framing of charge that the materials filed by the accused cannot be considered.
13. In the present case the stage of framing of charge has not reached as yet. Therefore, the aforesaid decision of the Supreme Court is of no help to the petitioner for the purpose of determining the point in issue.
14. The decision of the Supreme Court in the case of Velji Raghavji Patel v. The State of Maharashtra, reported in AIR 1965 SC 1433 cited by the petitioner is also not applicable for determination of the point in issue in the present case because the said decision of the Supreme Court arose against the conviction of the accused for the offence under Section 409, IPC. Therefore, it is apparent that the said case was after the trial and conviction, whereas in the present case the order taking cognizance has been challenged mainly on the ground that no prima facie case for prosecution is made out.
15. Now coming to the allegations made in the complaint petition in the present case. I find that the complainant has made specific allegations against the accused persons particularly against the petitioner that he dishonestly induced him to invest good amount and the complainant believing in good faith invested huge amount of money in the business and further that the petitioner without informing the complainant regarding receiving huge amount from the company, with dishonest intention of misappropriation withdrew the amount from the bank in connivance with the other accused and thereby caused heavy loss to the complainant.
Therefore, it cannot be said that there is no allegation at all in the complaint petition so as to constitute the offence alleged against the accused persons including the petitioner. From the allegations made in the complaint petition it cannot be said that it is purely a case of civil nature and no prima facie case of criminal offence is made out. Therefore, the submission of the petitioner that the facts stated in the complaint do not constitute any offence or that it is a purely a case of civil nature cannot be accepted and as such is rejected. In view of the settled principle of law at the state of taking cognizance truth or otherwise of the allegations made by the complainant cannot be decided. From the impugned order I find that the learned Chief Judicial Magistrate has elaborately dealt with the allegation made in the complaint petition, the materials adduced by the complainant during enquiry under Section 202, Cr PC and then has come to a finding that prima facie case for the offences alleged were made out. The documents, which are annexed with this application and referred by the learned counsel for the petitioner at the time of argument, cannot be considered because defence of the accused persons cannot be considered at this stage.
16. In view of my discussions and findings above, I hold that the learned Chief Judicial Magistrate has not committed any illegality in taking cognizance of the offence against the petitioner and others.
Accordingly, having found no merit in this application, the same is dismissed.