Jharkhand High Court
Unknown vs The State Of Jharkhand on 28 August, 2018
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 248 of 2015
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Jaikant @ Jay Kant @ Jai Kant Prasad, S/o late Jagadish Prasad, R/o Tara Naga,
Chas, P.O. & P.S. Chas, District-Bokaro. ....Petitioner
Versus
1. The State of Jharkhand.
2. Nitish Kumar, S/o Bednarayan Prasad, R/o Patel Nagar, Chas, P.O. P.S.
Chas, District-Bokaro.
.....Opposite Parties
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Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Deepak Kumar, Advocate
For the State : APP.
For the O.P. No. 2 : Mr. Bal Krishna Mishra, Advocate
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08/28/8/2018 Heard the parties.
This application is directed against the order dated 11.02.2015, passed in G.R. Case No. 985 of 2012, by the learned A.C.J.M, Bokaro, whereby and whereunder the application for discharge preferred by the petitioner has been rejected.
Initially a complaint case was instituted on the allegation that the informant and accused persons who are related to each other had decided to enter into a business jointly. Pursuant to the said agreement, a truck bearing registration no.JH09H-9417 was purchased and the amount was equally shared between the accused and the informant. It has been alleged that since the Truck was hypothecated to the bank, his ownership could not be transferred. It has been alleged that the complainant had paid the entire loan amount to the bank. The accused persons wanted to ply the truck themselves and wanted the complainant to do the calculation. On calculation made on 21.4.2012, the truck was valued at Rs.5,50,000/-and the complainant wanted to disassociate himself from the business by taking his share of Rs.2,75,000/-. It has been alleged that the accused no. 2 had given a cheque of Rs.2,75,000/- of his wife to the complainant and the cheque on being presented to the bank was dishonored with a memorandum of "payment stopped by drawer". A legal notice was also sent but since the amount was not paid, initially a complaint case was instituted and after being referred to the police under section 156(3) of Cr.P.C., Chas P.S. Case No. 182 of 2012 was registered. Investigation resulted in submission of chargesheet under sections 420, 406, 120(B)/34 of the Indian Penal Code against the petitioner only. After cognizance was taken, a discharge application was preferred by the petitioner, which on being rejected on 8.5.2013 was challenged in revision and the matter was remanded back for fresh consideration. The discharge application was once again rejected and once again the same was set aside by the revisional court and after the matter was remanded, the impugned order dated -2- 11.2.2015 has been passed.
It has been submitted by the learned counsel for the petitioner that there is no proper discussion of the materials collected in course of investigation in spite of repeated remands being made by the revisional court. It has further been submitted that proper appreciation has not been made with respect to the statements of the witnesses recorded in paragraphs 21, 22 and 27 of the case diary as all the said witnesses have stated that the petitioner had purchased the truck in the name of his wife and the informant was engaged only to look after the said business. Mr. Deepak Kumar, learned counsel for the petitioner, while further relying on paragraphs 21, 22 and 27 of the case diary has stated that they have disclosed that on apprehension that he would be removed from the business, the informant had kept a blank cheque, which was subsequently misused by him. It has been submitted that there is no documentary evidence to show that the truck was purchased jointly or he had invested half of the amount. Learned counsel submits that when a case under section 138 of the Negotiable Instruments Act is made out, the court is precluded from proceeding further with respect to a case instituted under sections 420 and 406 of the Indian Penal Code as the basic tenets of the complaint petition seems to revolve around the dishonor of cheque issued by the wife of the petitioner and therefore the impugned order dated 11.2.2015 deserves to be quashed and set aside.
Learned counsel for the O.P. No. 2 while referring to paragraph 7 of the complaint petition has stated that by a well thought out conspiracy, the informant has been duped by the petitioner and therefore a clear cut case under sections 420 and 406 of the Indian Penal Code is made out against the petitioner. It has further been stated that there is no bar to institute a case under section 420 of IPC even if a case is made out under section 138 of the Negotiable Instruments Act.
On consideration of the arguments advanced by the learned counsel for the respective parties, it appears that learned counsel for the petitioner has primarily relied upon the evidences of the witnesses recorded in paragraphs 21, 22 and 27 of the case diary. However a different version has been given by the witnesses whose statements have been recorded in paragraphs 2, 6, 7 and 8. At the time of hearing a discharge application, the trial court is not permitted to conduct a meticulous examination or a roving enquiry of the materials collected in course of investigation and since there appears to be some contradictions in the evidences of the witnesses referred to above, merely on account of the evidence of the witnesses recorded in paragraphs 21, 22 and 27 of the case diary, petitioner cannot be discharged from the criminal prosecution.
So far as the plea with respect to the fact that only a case under section -3- 138 of the Negotiable Instruments Act is made out against the petitioner, it is a settled law that even if a cheque is dishonored leading to institution of a case under section 138 of the N.I. Act, same would not prevent institution of a separate case under section 420 of the Indian Penal Code if a dishonest intention can be deciphered from the complaint petition itself.
In the case of Sangeetaben Mahendrabhai Patel Vs. State of Gujrat & Anr. reported in (2012) 7 SCC 621, it was held as follows:-
"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."
Coming back to the factual aspects of the case, the cheque issued by the wife of the petitioner which subsequently led to its dishonor and therefore the learned trial court had come to a conclusion that a prima facie case is made out under section 138 of the N.I. Act against the accused-Rita Kumari. However, the background fact leading to issuance of a cheque by the wife of the informant prima facie establishes that the informant was deprived from his share in the truck and therefore the existence of the evidence of paragraphs 22, 23 and 27 of the case diary will not lead to quashment of the criminal proceedings in view of the evidence of other witnesses as noted in the proceeding paragraphs.
In the case of V. Kutumba Rao Vs. M. Chandrasekhar Rao and Another reported in 2003 CRI. L.J. 4405, it has been 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 -4- 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 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.
Considering the ratio of the judgements referred to above and the materials collected in course of investigation, the learned trial court has rightly rejected the discharge application preferred by the petitioner by the impugned order dated 11.2.2015.
There being no reasons to conclude otherwise this application fails and the same is hereby dismissed.
(Rongon Mukhopadhyay,J) Rakesh/