Jharkhand High Court
Nagendra Prasad vs The State Of Jharkhand on 6 March, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.738 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.738 of 2023
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Nagendra Prasad, aged about 56 years, son of Late Bindeshwari Mahato, resident of Village- Vijay Nagar, P.O.- Sadipur, P.S- Nawada, District- Nawada, State- Bihar ... Petitioner Versus
1. The State of Jharkhand
2. Birendra Kumar Mehta, son of Baijnath Mahto, resident of Village- Mandhouti, Mahatawaniya, Mahua, P.O.- Domchanch Bazar, P.S.- Domchanch, District- Koderma ... Opposite Parties
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For the Petitioner : Mr. Anil Kumar Sinha, Advocate
For the State : Mr. Vineet Kr. Vashistha, Spl.P.P
For the O.P. No.2 : Mr. Sabyasanchi, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceedings of Complaint Case No.1036 of 2022 as well as the cognizance order dated 12.12.2022 passed by learned Judicial Magistrate-1st Class, Koderma whereby and where under the learned Magistrate found prima facie case for the offence punishable under Section 138 of the N.I. Act against the petitioner which is now pending in the court of learned Judicial Magistrate-1st Class, Koderma.
3. The brief facts of the case is that the petitioner handed over cheques of HDFC Bank to the complainant in respect of the amount payable to him towards the arrears of labour charges, stone chips which were invested by the complainant for establishment of a stone crusher. The cheques were dated 1 Cr. M.P. No.738 of 2023 08.05.2022. The complainant presented the two cheques on 09.05.2022. The same were dishonoured and the cheque return memo was received by the complainant on 18.05.2022 for insufficiency of funds. The complainant demanded the cheque amount on 19.05.2022 from the petitioner and also issued a notice on 01.06.2022 which was received by the petitioner on 18.06.2022 but he did not respond to the notice. Hence, the complaint was filed on 05.07.2022. On the basis of the same, the learned Magistrate found prima facie case against the petitioners for the offence punishable under Section 138 of the N.I. Act.
4. Learned counsel for the petitioner submits that the petitioner is innocent and has not committed any offence and the petitioner has entered into an agreement of 'Kirayanama' for ten years. The said 'Kirayanama' was cancelled. The petitioner sent a legal notice to the mother of the complainant. The complainant did not reply to the legal notice sent to his mother and to him also but cunningly filed the said Complaint Case No.1036 of 2022 in the court of Judicial Magistrate-1st Class, Koderma. It is next submitted that during the subsistence of the said 'Kirayanama', in security of promise of petitioner, the complainant demanded two blank cheques and he has given the post-dated cheques for Rs.3,00,000/- and Rs.2,00,000/- with the condition that the same will be returned if the petitioner will pay Rs.10,00,000/- to the complainant and even if the petitioner has paid Rs.10,00,000/- as agreed upon but the complainant did not return the said cheque and the said cheques given for security purpose have been misused by the complainant to file this complaint case.
5. Learned counsel for the petitioner relies upon the judgment of the Hon'ble Supreme Court of India in the case of Dalip Singh vs. State of U.P. 2 Cr. M.P. No.738 of 2023 and others passed in Civil Appeal No.5239 of 2002, and submits that a person who comes to court without clean hands, is not entitled to any relief. Hence, it is submitted that the entire criminal proceedings of Complaint Case No.1036 of 2022 as well as the cognizance order dated 12.12.2022 passed by learned Judicial Magistrate-1st Class, Koderma, be quashed and set aside.
6. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 vehemently oppose the prayer for quashing and setting aside the entire criminal proceedings of Complaint Case No.1036 of 2022 as well as the cognizance order dated 12.12.2022 passed by learned Judicial Magistrate-1st Class, Koderma. Learned Spl.P.P appearing for the State submits that so far as the judgment of the Hon'ble Supreme Court of India in the case of Dalip Singh vs. State of U.P. and others (supra) is concerned as has been held by the Hon'ble Supreme Court of India in the case of Mavilayi Service Cooperative Bank Limited & Others vs. Commissioner of Income Tax, Calicut & Another reported in (2021) 7 SCC 90 paragraph-28 and 29 of which read as under:-
"28. An illuminating discussion is to be found in the dissenting judgment of A.P. Sen, J. in Dalbir Singh v. State of Punjab [Dalbir Singh v. State of Punjab, (1979) 3 SCC 745 : 1979 SCC (Cri) 848 :
(1979) 3 SCR 1059] . Since the dissenting judgment refers to a principle of general application, not refuted by the majority, it is worth setting out this part of the judgment as follows : (SCC p. 755, para 22) "22. With greatest respect, the majority decision in Rajendra Prasad case [Rajendra Prasad v. State of U.P., (1979) 3 SCC 646 : 1979 SCC (Cri) 749] does not lay down any legal principle of general applicability. A decision on a question of sentence depending upon the facts and circumstances of a particular case, can never be regarded as a binding precedent, much less "law declared" within the meaning of Article 141 of the Constitution so as to bind all courts within the territory of India. According to the well-settled theory of precedents every decision contains three basic ingredients:
'(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts;3 Cr. M.P. No.738 of 2023
(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of (i) and (ii) above.' For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedents, ingredient (ii) is the vital element in the decision. This indeed is the ratio decidendi. [ R.J. Walker & M.G. Walker, The English Legal System, 3rd Edn. (Butterworths, London 1972) pp. 123-24.] It is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. In the leading case of Qualcast (Wolverhampton) Ltd. v. Haynes [Qualcast (Wolverhampton) Ltd. v. Haynes, 1959 AC 743 : (1959) 2 WLR 510 (HL)] it was laid down that the ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based. The other two elements in the decision are not precedents. The judgment is not binding (except directly on the parties themselves), nor are the findings of facts. This means that even where the direct facts of an earlier case appear to be identical to those of the case before the court, the Judge is not bound to draw the same inference as drawn in the earlier case."
29. Applying the aforesaid decisions, it is clear that the ratio decidendi in Citizen Coop. Society [Citizen Coop. Society Ltd. v. CIT, (2017) 9 SCC 364] would not depend upon the conclusion arrived at on facts in that case, the case being an authority for what it actually decides in law and not for what may seem to logically follow from it. Thus, the statement of the principles of law applicable to the legal problems disclosed by the facts alone is the binding ratio of the case, which as has been stated hereinabove, is contained in paras 18 to 23 of the judgment (see in para 23 above, pp. 120b-c to 122c). Paras 24 to 26, being the judgment (see in para 23 above, pp. 122c-d to 123f) based on the combined effect of the statements of the principle of law applicable to the material facts of the case cannot be described as the ratio decidendi of the judgment. Nor can it be said that it would logically follow from the finding on facts that the assessing officer can go behind the registration of a society and arrive at a conclusion that the society in question is carrying on illegal activities. On this score alone, the Full Bench's understanding of this judgment has to be faulted and is set aside." that anything written in a judgment cannot constitute as a precedent and for the doctrine of precedence, the ingredient of statement of principles of law applicable to the legal problems disclosed by the facts is the vital element 4 Cr. M.P. No.738 of 2023 in the decision and this indeed is the ratio decidendi. It is not that everything said by a Judge while giving judgment, constitutes a precedent and submits that in the case of Dalip Singh vs. State of U.P. and others (supra) nothing has been said so far as the statement of principle of law applicable to the legal problems disclosed by the facts and it has got nothing to do with the facts of the present case. Hence, the ratio of the said case is not applicable to the facts of this case.
7. So far as the contention of the petitioner that the cheque in question was given as a security by the petitioner to the complainant is concerned, it can only be considered at the time of defence during the trial and in support of his contention, learned Special Public Prosecutor relies upon the judgment of the Hon'ble Supreme Court of India in the case of Sripati Singh (Since Deceased) Through His Son Gaurav Singh vs. State of Jharkhand and Another reported in 2021 SCC OnLine SC 1002 paragraph-23 of which reads as under:-
"23. These aspects would prima-facie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent No. 2 was presented. On such cheque being dishonoured, cause of action had arisen for issuing a notice and presenting the criminal complaint under Section 138 of N.I. Act on the payment not being made. The further defence as to whether the loan had been discharged as agreed by respondent No. 2 and in that circumstance the cheque which had been issued as security had not remained live for payment subsequent thereto etc. at best can be a defence for the respondent No. 2 to be put forth and to be established in the trial. In any event, it was not a case for the Court to either refuse to take cognizance or to discharge the respondent No. 2 in the manner it has been done by the High Court. Therefore, though a criminal complaint under Section 420 IPC was not sustainable in the facts and circumstances of the instant case, the complaint under section 138 of the N.I Act was maintainable and all contentions and the defence were to be considered during the course of the trial."
(Emphasis supplied) Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.
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8. Learned counsel for the opposite party No.2 also submits that no illegality has been committed by the learned Judicial Magistrate in finding prima facie case against the petitioner for the offence punishable under Section 138 of N.I. Act or for ordering for issue of notice against the petitioner. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.
9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that there is absolutely no dispute that the petitioner issued the cheque which was dishonoured, the notice of demand was given by the complainant to the petitioner, the petitioner received the same but did not reply to the same and thereafter the complainant filed the complaint and the learned Magistrate has found prima facie case against the petitioner for the offence punishable under Section 138 of N.I. Act. These materials were sufficient for the learned Magistrate to find prima facie case against the petitioner for the offence punishable under Section 138 of N.I. Act. The contention of the petitioner that the cheques were issued for the purpose of security, is a defence, which certainly he can take during the trial of the case but certainly a defence cannot be used as a weapon to accuse the complainant that he has not come to court with clean hands and on that ground, a criminal proceeding relating to a complaint involving the offence punishable under Section 138 of the Negotiable Instrument Act, 1981 can be quashed.
10. So far as the judgment of Dalip Singh vs. State of U.P. and others (supra) is concerned, in the same some observations was made regarding certain settled principle of law but as already indicated above at this stage it cannot be said that defence of the petitioner is correct and on that ground it is not permissible in law to quash the entire criminal proceedings relating to an 6 Cr. M.P. No.738 of 2023 offence punishable under Section 138 of N.I. Act in exercise of the power under Section 482 of the Code of Criminal Procedure by this Court.
11. Accordingly, this Court is of the considered view that no illegality has been committed by the learned Judicial Magistrate-1st Class, Koderma in passing the Complaint Case No.1036 of 2022 as well as the cognizance order dated 12.12.2022.
12. Hence, the prayer of the petitioner to quash and set aside the entire criminal proceedings of Complaint Case No.1036 of 2022 as well as the cognizance order dated 12.12.2022 passed by learned Judicial Magistrate-1st Class, Koderma, is rejected.
13. In the result, this Cr.M.P. stands dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 06th of March, 2024 AFR/ Animesh 7