Jharkhand High Court
Abhay Singh Alias Abhay Kumar Singh vs The State Of Jharkhand And Anr on 4 October, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Miscellaneous Petition No. 2071 of 2014
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Abhay Singh @ Abhay Kumar Singh son of Rajeshwar
Singh R/o J I G 44, Housing Colony, PO & PS Housing Colony,
PO, PS & Distt. Dhanbad (Jharkhand) ... ... Petitioner
Versus
1.The State of Jharkhand
2.Achintya Kumar Dutta son of Rasmay Dutta
R/o Village Ranguni, PO Shramik Nagar, PS Katras
(East Basuria), Distt. Dhanbad (Jharkhand) ... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Gautam Kumar, Advocate
For the Opposite Party No. 2 : Mr. S. K. Laik, Advocate
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x/04.10.2017 Heard Mr. Gautam Kumar, learned counsel for the petitioner and
Mr. S. K. Laik, learned counsel for the opposite party no. 2.
2. In this application, the petitioner has prayed for quashing of the
entire criminal proceeding in connection with Protest cum Complaint
Petition No. 1750 of 2013 including the order dated 10.07.2014 passed by
the learned Judicial Magistrate 1st class, Dhanbad whereby and
whereunder cognizance has been taken for the offence punishable under
Sections 418/406 of I.P.C.
3. A complaint case was instituted by the complainant - opposite
party no. 2 on 27.02.2013 alleging therein that the petitioner and the
complainant were having friendly relations since long and the
complainant was having the business of cement etc at Bhuli. It has been
alleged that on the request of the petitioner in the month of May 2009, the
complainant had given a friendly loan of Rs. One lac to the petitioner on
the assurance that the same shall be returned within a month. In order to
clear the debt, the petitioner issued a cheque no. 18353 dated 11.06.2009
for an amount of Rs. One lac in favour of the complainant payable at
Bank of India, Bhuli branch. It has been alleged that on presentation the
cheque got dishonoured on account of insufficiency of funds. The
complainant has also alleged that the petitioner had fraudulently and
dishonestly cheated the complainant.
4. The complaint case was sent to the police under Section 156(3) of
Cr.P.C. which led to institution of Katras (East Basuria) P. S. Case No. 63
of 2013. Investigation resulted in submission of final form and on being
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noticed, a protest petition was filed by opposite party no. 2 which was
treated as a complaint petition and after perusing the same, cognizance
was taken under Sections 418 and 406 of I.P.C. vide order dated
10.07.2014.
5. Mr. Gautam Kumar, learned counsel for the petitioner while assailing the impugned order dated 10.07.2014 has stated that the entire dispute is civil in nature as the same is related to taking a loan of Rs. One lac from the complainant. It has been stated that earlier a complaint case was filed on the same set of allegations under Section 138 of Negotiable Instrument Act which resulted in acquittal of the petitioner. Learned counsel submits that the subsequent complaint instituted by the opposite party no. 2 is barred as the same contains the allegations which were levelled in the earlier complaint in which the petitioner had been given a clean chit. It has been stated that even otherwise the ingredients of cheating are clearly lacking as there was no dishonest intention on the part of the petitioner from the very inception of the transaction and in such fact circumstances, no case under Section 418 or 406 of I.P.C. is made out against the petitioner. Learned counsel while assailing his contention on double jeopardy had referred to the case of "Mahesh Chand Vs. B. Janardhan Reddy & Another" reported in (2003) 1 SCC 734, "Iridium India Telecom Ltd. Vs. Motorola Incorporated & Ors." reported in (2011) 1 SCC 74, "Kishore Kumar Gupta @ Kishori Prasad Gupta & Anr. Vs. State of Jharkhand & Anr." reported in (2012) 2 JLJR 213.
6. On the basis of the argument advanced by the learned counsel for the petitioner, he has prayed for quashing of the entire criminal proceeding.
7. Per contra, learned counsel for the opposite party no. 2 Mr. S. K. Laik has submitted that a case was instituted earlier and the subsequent case does not have any similarity as the earlier case was with respect to dishonour of cheque whereas the latter case which forms the subject matter of the present application is with respect to the deception, cheating and criminal breach of trust on the part of the petitioner. Learned counsel further submits that mere acquittal of the petitioner in the case under Section 138 of N. I. Act cannot have any bearing in the -3- subsequent complaint as both are with respect to different set of allegations and the same cannot be juxtaposed in order to come to a conclusion that the subject matter of the subsequent case was also the subject matter of the earlier case. In support of his contention that even if an accused is acquitted in a case under Section 138 of N. I. Act, the deception, cheating and breach of trust will continue has referred to the case of "Sangeetaben MahendraBhai Patel Vs. State of Gujarat & Anr." reported in (2012) 7 SCC 621. Reference has also been made to the case of "Vijayander Kumar & others Vs. State of Rajasthan & another" reported in (2014) 3 SCC 389, with respect to the powers of the Court under Section 482 of Cr.P.C.
8. The earlier complaint case instituted by the opposite party no. 2 under Section 138 of Negotiable Instrument Act ended in acquittal of the petitioner albeit, on more technicality as the complaint was found to have been filed beyond the period of limitation. The complaint petition which was earlier filed concentrated itself only with respect to the dishonour of cheque, the subsequent sending of legal notice and instituting the complaint case as the petitioner had failed to return the amount to the complainant. Cognizance was also taken under Section 138 of N. I. Act and the trial proceeded under the said section. The subsequent complaint lodged by the opposite party no. 2 has while mentioning about dishonour of the cheque has further tried to project the role of the petitioner regarding his dishonest intention. Whether the dishonest intention was in existence at the time of initiation of the transaction or it had subsequently developed, can well be looked into while dissecting the conduct of the petitioner. In lieu of the loan of Rs. One lac, the petitioner had issued a cheque which got dishonoured on account of insufficiency of funds, but the petitioner escaped from criminal prosecution under Section 138 of N. I. Act due to a mere technicality and not on account of the merits of the case. The complaint with which this Court is concerned for the present reveals the ill intention of the petitioner and the earlier complaint therefore, cannot have any bearing on the subsequent complaint as the general nature of allegations in the present complaint with respect to an offence of cheating and criminal breach of trust is -4- absent in the earlier complaint which was only with respect to dishonour of cheque issued by the petitioner.
9. Although, a plethora of cases have been cited by the learned counsel for the petitioner as well as by the learned counsel for the opposite party no. 2, but considering the facts of the present case and the findings which have been arrived at in the preceding paragraphs, it would be apt to refer to the judgment in the case of "Sangeetaben MahendraBhai Patel Vs. State of Gujarat & Anr." (supra), wherein considering similar circumstances, 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 dihonest 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."
10. The facts narrated above, thus clearly reveals that in spite of acquittal in a case under Section 138 of N. I. Act, the petitioner can be prosecuted under Sections 418 & 406 of I.P.C. as the offences alleged in both the complaints although connected to a certain extent with respect to the transaction entered into between the petitioner and the opposite party no. 2, but the same by itself would not give advantage to the petitioner of double jeopardy in the subsequent case as has also been held by the Hon'ble Supreme Court in the referred case above, and therefore, the plea of the petitioner made in this application being not entertainable, this application therefore stands dismissed.
(Rongon Mukhopadhyay, J) R. Shekhar Cp 3