Madhya Pradesh High Court
Ravindra Thakur vs The State Of Madhya Pradesh on 14 March, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 MCRC No.24357/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 14th OF MARCH, 2024
MISC. CRIMINAL CASE No. 24357 of 2022
BETWEEN:-
RAVINDRA THAKUR S/O LATE SHRI MOTILAL
THAKUR, AGED ABOUT 35 YEARS,
OCCUPATION: BUSINESS R/O IN THE HOUSE OF
PRASHANT MALAIYA, BALAK COMPLEX, P.S.
GOPALGANJ SAGAR DISTRICT SAGAR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI PRAMENDRA SEN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH THE POLICE STATION
GOPALGANJ DISTRICT SAGAR DISTRICT
SAGAR (MADHYA PRADESH)
2. RAJEEV S/O DEEPCHAND JAIN, AGED
ABOUT 41 YEARS, R/O BAHUBALI COLONY,
MATA MADIA FARSH, P.S. KOTWALI,
DISTRICT SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SMT. SWATI ASEEM GEORGE - DEPUTY GOVERNMENT
ADVOCATE AND RESPONDENT NO.2 BY SHRI SACHIN JAIN - ADVOCATE)
This application coming on for admission this day, the court
passed the following:
2 MCRC No.24357/2022
ORDER
This application under Section 482 of Cr.P.C. has been filed against the order dated 12.04.2022 in Criminal Revision No.37/2022 passed by Sessions Judge, Sagar, District Sagar arising out of order dated 21.12.2021 in Criminal Case No.1805/2019 passed by JMFC, Sagar by which the charge under Section 420 of IPC has been framed.
2. It is submitted by counsel for applicant that as per the prosecution case, the applicant had taken a loan from the complainant and assured that he would repay an amount of Rs.4,20,000/-. For three years, the applicant did not repay the amount and thereafter, he gave a cheque of Rs.4,21,000/- and the entire entries were in the handwriting of the applicant. When the cheque was presented before the Syndicate Bank, Katra Bazar, the same was returned back on the ground that there is a difference between the amount mentioned in figures and in words. Thus, it was alleged that the applicant has cheated the complainant. Police after completing the investigation filed the charge- sheet and the trial Court by the impugned order dated 21.12.2021 framed a charge under Section 420 of IPC and the revision has also been dismissed.
3. Challenging the orders passed by Courts below, it is submitted by counsel for applicant that whenever there is a difference between the amount mentioned in figures and the amount mentioned in words, then the amount mentioned in the words would be taken as the correct figure and in view of Section 18 of Negotiable Instruments Act, the Bank should not have returned the cheque. Therefore, it is 3 MCRC No.24357/2022 submitted that no offence under Section 420 of IPC was prima facie made out and thus the charge is liable to be quashed.
4. Per contra, the application is vehemently opposed by the counsel for complainant. It is submitted that deliberately the applicant had filled up the incorrect entries in order to avoid the repayment of the loan and thus he has cheated the complainant.
5. Heard the learned counsel for the parties.
6. Section 18 of Negotiable Instruments Act, 1881 reads as under:-
"18. Where amount is stated differently in figures and words.- If the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid."
7. From the plain reading of this section, it is clear that there is a difference between the figures and in words, then amount stated in words shall be the amount undertaken or ordered to be paid.
8. Under these circumstances, prima facie the Bank should not have returned back the cheque. However, Bank has not been implicated as party.
9. Section 420 of IPC is reads as under:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term 4 MCRC No.24357/2022 which may extend to seven years, and shall also be liable to fine."
10. The Supreme Court in the cases of Vesa Holdings (P) Ltd. v. State of Kerala, reported (2015) 8 SCC 293 and V. Ravi Kumar v. State, reported in (2019) 14 SCC 568 has held that if the intention of the accused right from very inception is to deceive the complainant only then an offence under Section 420 of IPC would be made out and mere breach of contract will not invite the invocation of Section 420 of IPC.
11. Therefore, the moot question for consideration is as to whether the different amount mentioned in figure and in words was with a deliberate intention to cheat the complainant or it was a bonafide mistake on the part of the applicant.
12. It is submitted by counsel for applicant that the applicant never got any information from the Bank with regard to the fact that his cheque has been returned back. He further submitted that he never received any notice from the complainant. It is submitted that where the cheque is returned back, then an offence under Section 138 of Negotiable Instruments Act would be made out and no offence under Section 420 would be made out and, therefore, even otherwise the registration of offence and framing of charge under Section 420 of IPC is bad in law.
13. Considered the aforesaid submissions.
14. Whether in case of return of cheque by the Bank, only an offence under Section 138 of Negotiable Instruments Act would be 5 MCRC No.24357/2022 made out or an offence under Section 420 of IPC would also be made out is no more res integra.
15. The Supreme Court in the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat, reported in (2012) 7 SCC 621 has held as under :- Para 37 to 39........
"37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the NI Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 of the NI Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed.
38. In the case under the NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under the NI Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under the NI Act can only be initiated by filing a complaint. However, in a case under IPC such a condition is not necessary.
39. There may be some overlapping of facts in both the cases but the ingredients of the offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions."6 MCRC No.24357/2022
16. Since, the ingredients of both the offences are different and, therefore, a person can be prosecuted simultaneously for offence under Section 138 of Negotiable Instruments Act as well as for offence under Section 420 of IPC. The counsel for the applicant is incorrect in submitting that where an offence under Section 138 of Negotiable Instruments Act is made out, then a person cannot be prosecuted for offence under Section 420 of IPC on the similar allegations.
17. As already pointed out that in order to make out an offence under Section 420 of IPC the prosecution has to prove that right from very inception the intention of the accused was to deceive the complainant. The intentions are always in the mind of the accused, which can be deciphered from previous or subsequent conduct. Accordingly, the counsel for applicant was directed to point out that after registration of offence whether the applicant had tendered the amount to the complainant, which was mentioned in words in the cheque. The counsel for applicant submits that he has no information about that.
18. If right from very inception, the intention of the applicant was not to deceive the complainant, then immediately after coming to know that his cheque has been returned back, least expected from him was to tender the amount to the complainant to show his bonafides. If the applicant even after coming to know that because of difference of amount in figures and words, the cheque has been returned back, still does not repay the amount, then it can be inferred for the purposes of framing charges the intention of the accused right from very inception was to deceive the complainant.
7 MCRC No.24357/202219. Furthermore, it is well established principle of law that this Court cannot indulge in a roving inquiry at the stage of framing of charges, even a grave suspicion is sufficient to frame charges.
20. The Supreme Court in the case of M.E. Shivalingamurthy v. CBI, Bengaluru, reported in (2020) 2 SCC 768 has held as under :-
17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution. 17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial". 17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.8 MCRC No.24357/2022
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar [State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181 : 1995 SCC (Cri) 664 : AIR 1995 SC 1954] ). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 :
2005 SCC (Cri) 415 : AIR 2005 SC 359] ).
21. The Supreme Court in the case of Soma Chakravarty v. State, through CBI, reported in (2007) 5 SCC 403 has held as under
:-
10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply 9 MCRC No.24357/2022 its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.
***
19. Some of the questions, however, which have been raised by the appellant are of some importance and it may be necessary to deal therewith. The learned trial Judge, it appears, did not properly apply its mind in regard to the different categories of the accused while framing charges.
It ought to have been done. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge.
22. The Supreme Court in the case of State (NCT of Delhi) v. Shiv Charan Bansal, reported in (2020) 2 SCC 290 has held as under
:-
39. The court while considering the question of framing charges under Section 227 CrPC has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case. If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. The court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the 10 MCRC No.24357/2022 ingredients constituting the alleged offence. At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. Reliance is placed on the judgment of this Court in State of Bihar v. Ramesh Singh [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533] where it has been held that at the stage of framing charges under Sections 227 or 228 CrPC, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused had committed the offence, then the court should proceed with the trial.
40. In a recent judgment delivered in Dipakbhai Jagdishchandra Patel v. State of Gujarat [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547] decided on 24-4-2019, this Court has laid down the law relating to framing of charges and discharge, and held that all that is required is that the court must be satisfied with the material available, that a case is made out for the accused to stand trial. A strong suspicion is sufficient for framing charges, which must be founded on some material. The material must be such which can be translated into evidence at the stage of trial. The veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged at this stage, nor is any weight to be attached to the probable defence of the accused at the stage of framing charges. The court is not to consider whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in the conviction.
23. The Supreme Court in the case of State of Rajasthan v. Fatehkaran Mehdu, reported in (2017) 3 SCC 198 has held as under
:-
26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the scope of interference 11 MCRC No.24357/2022 under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied.
Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure.
20. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that no illegality was committed by the trial Court as well as by the Revisional Court by framing charge under Section 420 of IPC.
21. Accordingly, the application fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE VB* VINAY KUMAR BURMAN 2024.03.15 17:14:58 +05'30'