Madhya Pradesh High Court
Ashok Ambalal Shah vs Guruvachan Rajsingh Bagga on 16 September, 1991
Equivalent citations: 1992(0)MPLJ438
ORDER K.L. Issrani, J.
1. The present revision petition is against the order dated 23-3-1991 passed by Smt. Beena Tiwari, Judicial Magistrate First Class, Damoh in Criminal Case No. 139/91 taking cognizance of the offence under Section 420 of the Indian Penal Code on the private complaint filed by the non-applicant against the applicant. The applicant prays for quashing of the proceedings.
2. According to the applicant, he is the resident of Ahmedabad-Gujarat. He is a businessman. He never visited Damoh and he does not know the non-applicant, Guruvachan Singh, and had never met him.
3. The non-applicant has filed a complaint against the applicant before the Court of Judicial Magistrate First Class, Damoh on 23-3-1991 alleging that the applicant came to Damoh and wanted an amount of Rs. 60,000/- for his business purpose, which the applicant advanced after taking the post-dated cheque on 27-6-1990 in the presence of Ishwar Singh Vasu, with whom the applicant is said to have come and also in the presence of Narayan Singh and Govind Singh. The post dated cheque was dated 27-12-1990 and cheque No. is 0211538 for Rs. 60,000/-. According to the non-applicant, this cheque was dishonoured when presented to the Bank after 27-12-1990 and he received it back on 11-1-1991 with the remark that the payment has been stopped by the applicant. The non-applicant, therefore, filed a private complaint before the trial Magistrate on 23rd March, 1991.
4. The non-applicant was examined by the trial Magistrate under Section 200 of the Criminal Procedure Code on the same date. The case against the applicant was registered under Section 420, Indian Penal Code and the warrant against him was ordered to be issued the same day. On the applicant coming to know of it has filed the present petition for quashing those proceedings before this Court. According to the applicant, he does not know the non-applicant at all. He never visited Damoh. The applicant has an Ice Cream Factory and a restaurant at Ahmedabad. He had no business to come down to Damoh and he never obtained Rs. 60,000/- in cash from the non-applicant. According to the applicant, a cheque was issued to one Manjit Singh alias Satnam Singh of Ahmedabad from whom a loan of Rs. 60,000/- was taken for business purpose at Ahmedabad and as security, two cheques bearing Nos. 0211537 for Rs. 25,000/- and No. 0211538 for Rs. 60,000/- drawn on Bank of Baroda, Navarangpura Branch, Ahmedabad were issued in favour of Manjit Singh on 22-2-1990 and 3-3-1990 respectively. Photocopies of their counterfoils are filed in this Court as Annexures C and D. These cheques were issued without any name having been filled in and without any date. It appears that the cheque of Rs. 60,000/- has been given by Manjit Singh to the non-applicant in order to blackmail the applicant. The applicant further submits that the said Manjit has already filed a civil suit against the applicant on 5-4-1990. A photocopy of the same is filed as Annexure-E. A copy of the written statement is filed as Annexure-F. The applicant has also filed an application in the Court of Metropolitan Magistrate, Ahmedabad City as Criminal Case No. 134/90-91 (Enquiry), a copy of which is Annexure-G. Another complaint was also filed by the applicant against Manjit Singh in Ahmedabad Court in Criminal Case No. 98/91, on 25-1-1991. A copy of the same is Annexure-H. In this complaint, it has been stated by the applicant that Manjit Singh and other accused persons also known to the accused and as such, the applicant had taken the loan of Rs. 60,000/- towards security of two cheques of Rs. 60,000/- and Rs. 25,000/- each bearing Nos. 0211537 and 0211538 drawn on Bank of India, which was given to Manjit Singh. The applicant had signed the cheque indicating the amount, but the name of drawee was not mentioned. Manjit Singh in abetment with other persons has intention to usurp the leased property and forged one 'Bana Chithi' in the name of the complainant and had also forged the seal of the applicant Ambalal Ice Cream and restaurant for which the complaint has been filed and sent to the respective Magistrate for investigation. A second complaint was also filed in respect of another cheque of Rs. 25,000/- which cheque was said to have been deposited in Punjab National Bank, Ludhiyana by one Hirendra Pal Singh Chawla of Ludhiyana by writing his name, though the cheque was not drawn in his favour. This complaint is also under enquiry of the Metropolitan Magistrate.
5. That after the aforesaid complaint of the applicant against Manjit Singh, the present false complaint has been filed by the non-applicant at Damoh to harass the applicant. The non-applicant is the relative of Manjit Singh. The complaint is apparently false.
6. The applicant further submits that by letter dated 10th April, 1990 written to the Bank of India, Ahmedabad the applicant had requested the Bank authorities to stop payment of both the aforesaid cheques. A copy of the said letter is filed as Annexure-1. According to the applicant, after stopping such payment, there is no reason for the applicant to give the same cheque to the non-applicant at Damoh. Therefore, the applicant has prayed for quashing the proceedings against him.
7. The submissions of the learned counsel for the non-applicant are that once the cognizance has been taken by the Magistrate and the process issued, the proceedings cannot be quashed.
8. Learned counsel for the applicant has also referred to the amended Section 138 of the Negotiable Instruments Act, by which on the cheque being dishonoured, the person concerned is liable to punishment for one year. But it requires a written notice of it to be served on the accused person before filing such complaint before the Magistrate concerned, which, according to the applicant, has not been done by the non-applicant. No report has even been lodged before the police station. The learned counsel has relied on Nagrajan v. Jinnah Saheb, 1986 Cri. L.J. 483 and also Smt. Chitra Nandlal v. Bachchu Bhai Chhagan Lal and Ors., 1980 Gujarat Law Times 103 and submitted that from the facts and circumstances of this case, no offence of cheating is made out. Learned counsel for the applicant has also relied on Chandra Deo Singh v. Prokash Chand Bose, AIR 1963 SC 1430, Numaljit Singh v. State of West Bengal, AIR 1972 SC 2639, Nagawwa v. Veeranna, AIR 1976 SC 1947 and J. P. Sharma v. Vinod Kumar Jain, AIR 1986 SC 833, for his contention.
9. This is a peculiar case, which is to be seen with great caution and care. It is surprising that the complaint was filed on 23-3-1991 and the learned Magistrate, after taking statement of the non-applicant, only has registered it and issued process on the same day. The payment of amount to the applicant is not of thousand or so, but of Rs. 60,000/-. As far as I remember, according to the provisions of the Income Tax Act, no payment more than Rs. 10,000/- is to be made in cash except by payment of cheque and no loan is to be advanced for more than Rs. 20,000/- except by payment of cheque or valid receipt duly signed by loanee. No receipt of such payment has been filed with the complaint. It is not shown as to from where this amount was brought by the non-applicant. Copies of entries in the accounts book are also not filed to corroborate the payment. Even witnesses, before whom the said payment of such a huge amount is alleged to have been made, were not examined to corroborate the statement of the applicant, for the satisfaction of the learned Magistrate. Before filing the complaint, no letter or notice was given to the applicant. Even no correspondence has been filed with Ishwar Singh, who is also the resident of Ahmedabad. No report in the police was also lodged. This goes to show the conduct of the non-applicant. No notice as per Section 138 of the Negotiable Instruments Act was also given by the applicant.
10. No doubt under Section 203, Criminal Procedure Code, Magistrate has to form an opinion for sufficiency of the ground for proceeding and under Section 204, Criminal Procedure Code, Magistrate has to form a definite opinion about the sufficiency of ground to proceed. Then only process is to be issued. This formation of opinion is a judicial process and the opinion is to be formed judicially. In this case, the Magistrate has written a very cryptic order. Certified copy of the order dated 23-3-1991 only says that complaint and the documents perused and a prima facie case under Section 420, Indian Penal Code seems to be made out ^^vkjksi curk izrhr gksrk gSA** That means the learned Magistrate was not definite about the offence under Section 420, Indian Penal Code having been made out. No reasons are also given. The order is also not a speaking one.
11. Counterfoils of cheques- Annexures C and D for Rs. 25,000/- and Rs. 60,000/- show the name of Satnam Singh to whom the cheques were issued. But on the back of the counterfoils, it is written against advance being given to Satnam Singh/Manjit Singh. Copies of the documents filed by the applicant before this Court are objected by the counsel for the non-applicant. His submission is that they are not certified copies or attested copies. They cannot be relied upon.
12. Even ignoring these documents, the major fact remains that prima facie what was the proof before the Court to come to the conclusion that the applicant had been to Damon and the payment of Rs. 60,000/- was made to him, except the complainant, who is an interested person. The Magistrate should have been cautious to accept the bald statement of the non-applicant before registering the case and issuing process against the applicant, because it may be that sometime, innocent persons are driven to the Court of Law on false statement of the complainant. In P. Ishwara Reddy v. State of Andhra Pradesh, 1986 Cr. L.J. 207, the accused had obtained possession of vehicle by paying 10% of the consideration. The cheque for further sum given by the accused, when presented, was dishonoured by the Bank. In complaint under Section 420, Indian Penal Code, it was held that dishonour of cheque for antecedent date did not amount to cheating. In Nagrajan v. Jinnah Saheb, 1986 Cri. L.J. 483, it has been held that giving of the cheque in lieu of money due with knowledge that the drawer had no fund with the Bank, does not amount to an offence of cheating in the absence of any evidence to show that the person to whom the cheque was issued parted with any property or that he did anything which he would not have done, had he known that the cheque would be dishonoured. In the present case, the payment of Rs. 60,000/- without any receipt and any other corroboration becomes doubtful. In Smt. Chitra Nandlal v. Bachchu Bhai Chhagan Lal and Ors., 1980 Gujarat Law Times 103, Hon. Mankad, J., while deciding the case has held as under:-
"I would like to sound a note of caution to the Courts taking cognizance of criminal offence. I have come across many cases like the present one involving civil disputes where litigants instead of seeking redress in civil Court knock the doors of the criminal Courts with the sole object of using criminal action as lever to gain unfair advantage over their adversaries. The Courts should be vigilant, and circumspect and curb growing tendency amongst the litigants to resort to criminal proceedings to settle their disputes of civil nature. Common man is generally scared of criminal proceedings taken against him and it is, therefore, that a litigant is tempted to drag his adversary to a criminal Court."
It has been further held that the Courts need to be watchful and it should closely scrutinise the evidence and material on record before taking cognizance of the alleged offence. To act otherwise would lead to encourage unscrupulous litigation to abuse the process of the Court and assist them in achieving their objective by unfair means.
13. That besides the above facts and now there amended provisions of the Negotiable Instuments Act, Section 138 provides as under : -
"138. Dishonour of cheque for insufficiency, etc. of funds in the account - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the ,amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless -
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
14. No such steps, as required by the Negotiable Instruments Act, have been taken. As such, the complaint is not maintainable. Even otherwise, the conduct of the non-applicant is also doubtful, because of the non-convincing proof of the presence of the applicant and payment to him. Though the non-applicant did not like to write to the applicant about the dishonouring of his cheque, he could have very well informed his relative Ishwar Singh with whom the applicant is said to have come down to Damoh for taking Rs. 60,000/-. There is no evidence that the applicant had dealings at Damoh and money was required by him of that amount. The applicant could have very well written to Ishwar Singh about the fact of cheque being dishonoured.
15. No doubt in Nagawwa v. Veeranna, AIR 1976 SC 1947, it has been held that at the stage of issuing of process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case, nor can the High Court go into this matter in the revisional jurisdiction, which is a very limited one. In this ruling, the Hon. Apex Court had relied on Chandra Deo Singh v. Prokash Chand Bose, AIR 1963 SC 1430, in which it was observed that the Courts have also pointed out what the Magistrate has to see if there is evidence in support of the allegation of the complainant. The Hon. Court has relied on the observations in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113, also in which it has been observed that the enquiry is for the purpose of ascertaining the truth or falsehood of the complaint, i.e. for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceeding against the person concerned.
16. The Hon. Apex Court further dealing with the case of Nagrajan v. Veeranna (supra) has held that where the allegations in the complaint or the statements of the witnesses recorded in support of the same taking at their face value makes out actually no case against the accused or the complainant does not disclose the essential ingredients of an offence, which is alleged against the accused or whether the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach the conclusion that there is sufficient ground for proceeding against the accused, the order of the Magistrate in such case can be quashed. In the present case, the procedure, as laid down in Section 138 of the Negotiable Instruments Act, is not adopted by the applicant. No convincing proof of payment or supporting evidence was made. Therefore, I have no hesitation in holding, even ignoring the defence documents, that the complaint of the non-applicant against the applicant is absurd and does not make out any offence against the applicant under Section 420 of the Indian Penal Code. The proceedings are, therefore, liable to be quashed.
17. The revision is allowed, it is ordered that the proceedings of Cri. Case No. 139/1991 - Guruvachan Singh v. Ashok Ambalal Shah pending before the Court of Smt. Beena Tiwari, Judicial Magistrate First Class, Damon under Section 420, Indian Penal Code are hereby quashed.