Patna High Court - Orders
M/S Bhawan Alankar Thru.Smt.Renu Bala vs State Of Bihar & Anr on 13 August, 2014
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 25209 of 2010
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M/S Bhawan Alankar through its Proprietor Smt. Renu Bala, wife of Late
Ashok Kumar of Nala Road, P.S. Kadam Kuan, District - Patna and Shri
Nilesh Kumar @ Sonu
.... .... Petitioner
Versus
1. The State of Bihar
2. M/s J.K. White Cement Works through its Marketing Manager Sri Paras
Kumar, S/o Dinesh Prasad, R/o 104, Shivani Apartment, Kasturba Path,
Boring Road, P.S. Budha Colony, District - Patna.
.... .... Opposite Parties.
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Appearance:
For the Petitioner/s : Mr. Surendra Kishore Thakur, Advocate.
For the Opposite Party No.1: Mr. Jharkhandi Upadhyay, A.P.P.
For the Opposite Party No.2: Mr. Ajay Kumar Sinha and
Mrs. Manju Jha, Advocates.
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
CAV ORDER
19 13-08-2014The petitioner is a Proprietorship firm under the name and style of M/S Bhawan Alankar. The present application has been filed at the instance of the Proprietor of the firm, whereby a challenge has been put up to the order dated 07.02.2007, passed by the learned Judicial Magistrate 1st Class, Patna in Complaint Case No. 2900 (C) of 2006, whereby cognizance has been taken under Sections 406, 467 and 468 of the Indian Penal Code. A further challenge is to the order dated Patna High Court Cr.Misc. No.25209 of 2010 (19) dt. 13 -08-2014 2/8 03.04.2010, whereby the prayer made on behalf of the petitioner under Sections 210 of the Code of Criminal Procedure has been rejected by the learned Judicial Magistrate.
2. The Opposite Party No. 2 filed a complaint before the learned Chief Judicial Magistrate, Patna, vide Complaint Case No. 2900 (C) of 2006, whereby it was alleged that two demand drafts along with a cheque were given to the complainant for the purposes of supply of white cement. The cheque got encashed whereas the drafts were found to be forged. The complainant informed the accused persons telephonically about the drafts being forged, as reported by the Bank authorities, but no payment was made at the instance of the accused persons. The sum and substance of the allegation, therefore, is that the accused persons including the petitioner, out of mala fide and guilty intention, procured goods from the complainant and gave forged and fabricated demand drafts, thereby causing huge wrongful loss to the company, leading to the attraction of the offences under Sections 406, 409 and 420 of the Indian Penal Code. The aforementioned complaint is said to have been lodged on 11.10.2006. An F.I.R. was also lodged against unknown accused persons through the agency of the Bank of Baroda in which it was alleged that the demand drafts, submitted by the complainant of Patna High Court Cr.Misc. No.25209 of 2010 (19) dt. 13 -08-2014 3/8 the present case, were found to be forged and fabricated. Thus, the F.I.R. was lodged on 09.10.2006, i.e., about two days prior to the lodging of the complaint, contained in Annexure-1.
3. The complaint, lodged by the Opposite Party No. 2, was acted upon and vide order dated 07.02.2007, the learned Judicial Magistrate 1st Class, Patna took cognizance for offences under Sections 406, 467 and 468 of the Indian Penal Code.
4. The petitioner appears to have challenged the aforesaid order of cognizance before this Court vide Cr. Misc. No. 36581 of 2007. By order dated 06.02.2008, the aforesaid Cr. Misc. application was disposed of with a direction to the trial court to dispose of the petition preferred on behalf of the petitioner under Section 210 of the Code of Criminal Procedure. On the strength of such an order dated 06.02.2008 (Annexure 3 to this petition), the petitioner moved such application before the court below. However, vide order dated 03.04.2010, which is also under challenge, such application was rejected holding that the provisions of Section 210 of the Code cannot apply to the facts of the case in hand.
5. From a perusal of the order dated 03.04.2010 passed by the court below, it would appear that the court below took note of the fact that the offences in the present complaint and Patna High Court Cr.Misc. No.25209 of 2010 (19) dt. 13 -08-2014 4/8 the First Information Report (Annexure 2) were of different tenor and even the applied Sections of the Indian Penal Code are different. It was found out by the court below that the F.I.R. of Gandhi Maidan P.S. Case No. 332 of 2006 was instituted for the offences under Sections 467, 468, 469, 420, 511 and 471 of the Indian Penal Code.
6. It would be necessary to reproduce herein below Section 210 of the Code of Criminal Procedure. Section 210 reads thus-
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. - (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire Patna High Court Cr.Misc. No.25209 of 2010 (19) dt. 13 -08-2014 5/8 into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
7. From a reading of Section 210 of the Code, it would become clear that the provisions of the aforesaid Section deal with the procedure to be followed when there is a complaint case and police investigation in respect of the same offence.
8. The object of enacting Section 210 of the Code is three fold - (i) it is intended to ensure that private complaints do not interfere with the course of justice; (ii) it prevents harassment to the accused at once and (iii) it obviates anomalies which might arise from taking cognizance of the same offence more than once. Such a provision was enacted because the makers of the Act thought in their wisdom that sometimes when serious case is under investigation by the police, some of the persons may file complaint and may quickly get an order of acquittal - either by cancellation or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some Patna High Court Cr.Misc. No.25209 of 2010 (19) dt. 13 -08-2014 6/8 cases. To avoid this, it has been provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate stays the complaint case. If the police report (under Section 173 Cr.P.C.) is received in the case, the Magistrate would try together the complaint case and the case arising out of the police report. But, if no such case is received, the Magistrate would be free to dispose of the complaint case. This new provision, as noticed earlier, is intended to secure that private complaints do not interfere with the course of justice.
9. Seen in this background, the provision of Section 210 Cr.P.C. can only be invoked when there is a complaint pending enquiry or trial, investigation by the police is in progress in relation to the same offence, a report must have been made by the police officer under Section 173 Cr.P.C. and the Magistrate must have taken cognizance of an offence against a person, who is accused in the complaint case.
10. In the present case, the basic tenor of the two cases, namely, the complaint and the F.I.R. are different. Since the allegations in the two cases are not same, the provisions of Section 210 Cr.P.C. are not applicable. The court below, therefore, cannot be faulted with if such a prayer, made on behalf of the petitioner for invoking the jurisdiction under Section 210 Cr.P.C., was Patna High Court Cr.Misc. No.25209 of 2010 (19) dt. 13 -08-2014 7/8 rejected.
11. What is to be borne in mind is that the provisions of Section 210 Cr.P.C. cannot arrest the proceedings in the complaint if the tenor of the cases is different and that even in case of non-compliance with the provisions of Section 210 shall not ipso facto be fatal to the prosecution unless it causes failure of justice. It is also to be kept in mind that by using the powers under Section 210, a complaint cannot be indefinitely kept under suspension and not acted upon.
12. So far as the challenge to the order taking cognizance is concerned, this Court is of the view that all the offences, for which the accused persons including the petitioner have been charged, are made out from a bare reading of the complaint. It is a matter of trial to come to a conclusion as to who actually forged the Bank drafts. Since the Bank drafts were submitted on behalf of the petitioner to the complainant which, in turn, was deposited in the Bank, the petitioner cannot escape any liability of being tried for such offence. The contention of the petitioner that the complainant is a Special Power of Attorney holder, therefore, he could not have preferred the complaint in his individual capacity and the fact that the amount of bill exceeds Rs. 50,000/- which requires VAT clearance is without substance. Patna High Court Cr.Misc. No.25209 of 2010 (19) dt. 13 -08-2014 8/8
13. This application is, therefore, sans merits and is, thus, dismissed.
(Ashutosh Kumar, J) Dilip.
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