Jharkhand High Court
Suvendu Narayan Chowdhury vs The State Of Jharkhand on 9 March, 2016
Equivalent citations: 2017 (2) AJR 729
Author: R. Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 124 of 2015
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Suvendu Narayan Chowdhury, S/o Late Arabinda Choudhary,
Resident of Village:- Dimna Basti, P.O. + P.S.:- Ulidih, Road No. 18,
Jamshedpur, Distt:- East Singhbhum, Jharkhand
... ... Petitioner
Versus
The State of Jharkhand ... ... Opp. Party
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Mahesh Tiwari, Advocate
For the State : Mr. Ravi Prakash, A.P.P.
For the O.P. No. 2 : Mr. Amit Kumar Das, Advocate
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08/09.03.2016In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Chakulia P. S. Case No. 86 of 2012 including the order dated 01.07.2014 passed by Sri S. A. Prasad learned J. M. 1st Class, Ghatshila whereby and whereunder charge has been framed under Sections 406, 420 of the Indian Penal Code.
2. The prosecution case as per the written report of the informant is that the petitioner is the proprietor of a Petrol Pump of Indian Oil Corporation, at Kamarigora, Dakhinasole, Chakulia where the informant used to fill diesel in his truck and a good relationship had developed between the petitioner and the informant and whenever the petitioner wanted a loan for purchasing petrol or diesel the informant used to advance him the loan amount which would be returned by the petitioner in due course of time. It is alleged that on 10.08.2012, the petitioner had asked the complainant for Rs. 5,55,000/- as loan towards the purchase of petrol and on good faith the complainant had given him the said amount in lieu of which the petitioner had given two cheques of Rs. 90,000/- and Rs. 4,60,000/-. The cheques being presented to the Bank the cheque containing Rs. 4,60,000/- got dishonoured due to insufficient found while the other cheque could not be honoured on account of stop payment made by the petitioner.
3. On the basis of the aforesaid allegation, Chakulia P. S. Case No. 86 of 2012 was instituted.
4. After investigation charge-sheet was submitted against the petitioner on 05.10.2012 and, thereafter, on 02.07.2013 cognizance was -2- taken for the offences punishable under Sections 406 and 420 of the Indian Penal Code. Subsequently vide order dated 01.07.2014 charge was framed for the offences punishable under Sections 406, 420 of the Indian Penal Code.
5. Heard Mr. Mahesh Tiwari, learned counsel appearing for the petitioner, Mr. Ravi Prakash, learned A.P.P., for the State and Mr. Amit Kumar Das, learned counsel appearing for the opposite party no. 2.
6. Mr. Mahesh Tiwari, learned counsel appearing for the petitioner, has submitted that from the entire allegations the case appears to be one under Section 138 of the Negotiable Instruments Act and no offences under Sections 406, 420 of the Indian Penal Code is made out against the petitioner. It has been submitted that Manager of the petitioner namely Malay Kumar Mahto had misappropriated and defalcated a huge amount of the sale proceed of the petitioner's Petrol Pump at Chakulia by misusing several cheques which were kept with the Manager duly signed by the petitioner and for which the petitioner had instituted Chakulia P.S. Case No. 86 of 2012. It has been submitted that the Manager of the petitioner in connivance with the informant had handed over the cheque which was filled according to their wishes and which got dishonoured leading to institution of the case. Submission has been advanced that the allegation against the Manager was found to be true as he was convicted by the learned trial court vide its judgment dated 27.01.2014. It has thus been submitted that the petitioner cannot be held liable for any offence involving criminal breach of trust inducing and cheating when the defence of the petitioner has been substantiated by the conviction of the Manager.
7. Mr. Amit Kumar Das, learned counsel appearing for the opposite party no. 2, has submitted that there is sufficient evidence on record to suggest that there was dishonest intention on the part of the petitioner in inducing the informant to part with a huge amount which subsequently was never returned to the informant. It has been submitted that the intention is evident from the fact that after issuance of the cheques the account was closed and order was made for stop payment. Learned counsel submits that the conviction of the Manager of the petitioner does not entail any benefit to the petitioner as it -3- cannot be said that the cheques which were issued to the informant were found to be issued in connivance with the Manager and the informant.
8. Countering the argument of the learned counsel for the petitioner that only a case under Section 138 of the Negotiable Instruments Act is made out it has been submitted that offence under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act are two different offence and there is no bar for separate prosecution under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. In support of his contention, learned counsel for the informant has referred to the judgment passed in the case of V. Kutumba Rao v. M. Chandrasekhar Rao and another reported in 2003 CRI.L.J. 4405.
9. The main force of argument of the learned counsel for petitioner is with respect to the innocence of the petitioner on account of the conviction of his Manager in a case instituted by the informant. The allegation with respect to Chakulia P. S. Case No. 85 of 2012 instituted by the petitioner was with respect to misappropriation in the sale proceed of the petrol pump and misuse of the undated and signed cheques which were in possession of the Manager. No doubt it is true that such allegation having been proved the Manager was convicted by the learned trial court vide judgment dated 27.01.2014 but the same cannot be a basis to conclude that the cheques which were handed over by the petitioner to the informant were actually misused by his Manager. The mere conviction of the Manager of such charge cannot accrue any benefit to the petitioner as prima facie an offence of cheating and criminal breach of trust is made out against the petitioner as the petitioner with a dishonest intention had induced the informant to advance him a loan of Rs. 5,50,000/- and the cheques which were issued got dishonored simply on the acts of the petitioner. The subsequent action of the petitioner resulting in dishonor of the cheque reflects the dishonest intention of the petitioner from the very inception of the transaction and the conviction of his Manager is merely being used as a ruse to prove his innocence.
-4-10. In the case of V. Kutumba Rao v. M. Chandrasekhar Rao and another (Supra) while considering as to whether a proceeding under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act can continue and whether both are distinct and different offence it was held as follows:-
11. In my considered opinion the offences under Sections 420, IPC and 138 of the Act are distinct and separate offences. If a person fraudulently or dishonestly induces another person to deliver any property or to do or omit to do anything which he would not do or omit if he were not deceived and such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property commits an offence of cheating. Such a person commits the offence punishable under Section 420, IPC. In a prosecution under Section 138, Negotiable Instruments Act any inducement so as to make the other person to deliver any property etc. as defined in Section 415, IPC, is not an ingredient. If a person issues a cheque and subsequently if the cheque was dishonoured by the bank for want of funds etc. and thereafter even after issuance of demand notice, the said person fails to pay the amount covered by the cheque within the time stipulated by Negotiable Instruments Act, that person commits an offence punishable under Section 138 of the Act. The question of inducement to other person to part with any property to do or omit to do anything does not at all arise for a decision in a prosecution under Section 138 of the Act. The offence under Section 138 of the Act is not committed on the date of issuing the cheque. The offence happens after it was dishonoured by the bank for specified reasons and thereafter even after demand the person concerned fails to pay the amount covered by the cheque to the other person. These facts do not fall for a decision in a prosecution under Section 420, IPC. Sometimes at the time of issuing the cheque a person may induce the other person to part with property etc. If such inducement is dishonest or fraudulent he may be committing the offence of cheating and thereby he becomes liable for prosecution. If such a person later within the time stipulated under the provisions of Negotiable Instruments Act repays the other person amount covered by the cheque he will not be liable for prosecution for the offence under Section 138 of the Act but still he can be prosecuted for the offence of cheating if at the time of issuing the cheque he had fraudulently or dishonestly induced the other person to part with property etc.In a prosecution under Section 138, Negotiable Instruments Act, the mens rea viz., fraudulent or dishonest intention at the time of issuance of cheque need not be proved. However in a prosecution under Section 420, IPC mens rea is an important ingredient to be established. In the former case the prosecution has to establish that the cheque was issued by accused to discharge a legally -5- enforceable debt or other liability. This ingredient need not be proved in a prosecution for the charge under Section 420, IPC. Therefore, the two offences covered by Section 420, IPC and 138, Negotiable Instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, Section 300, Cr. P.C. is not a bar for separate prosecutions for the offences punishable under Section 420, IPC and 138 of the Negotiable Instruments Act. The question of application of the principles of double jeopardy or rule estoppel does not come into play. The acquittal of the accused for the charge under Section 420, IPC does not operate as estoppel or res judicata for a finding of fact or law to be given in prosecution under Section 138 of the Negotiable Instruments Act. The issue of fact and law to be tried and decided in prosecution under Section 420, IPC are not the same issue of fact and law to be tried in a prosecution under Section 138 of the Act. I, therefore, do not find any force in the contentions advanced on behalf of the accused for quashing the proceedings in C.C. No. 737 of 1999. Therefore, both the revision petition and quash proceedings are liable to be dismissed."
11. In view of the above, the informant was never precluded from instituting a case under Sections 420 and 406 of the Indian Penal Code even though the cheques handed over to the informant were dishonoured as there appears to be sufficient mens-rea against the petitioner of committing the offence.
12. As a cumulative result of the discussions made hereinabove, I do not find merit in this application and the same is accordingly, dismissed.
(R. Mukhopadhyay, J.) Umesh/-