Patna High Court
Balwant Singh vs State Of Bihar And Anr. on 8 January, 2007
Equivalent citations: IV(2007)BC329
ORDER Abhijit Sinha, J.
1. This application under Section 482, Cr.P.C. by the petitioner herein, one of the partners of Khalsa Medical Hall, Samastipur, is directed against the order dated 8.7.2004 passed in Complaint Case No. 76(C) of 2004 by Sri Ishrat Ullah, the learned Judicial Magistrate, First Class, Patna, whereby he has token cognizance of the offences under Sections 406 and 420 of the Indian Penal Code as also Section 138 the Negotiable Instruments Act (Hereinafter referred to as the N.I. Act).
2. M/s. Pfizer Limited, a private firm, manufacturing medicines (hereinafter referred to as the complainant-firm) through its authorised representative filed the aforesaid complaint case inter alia alleging that 5 cheques amounting to a total of Rs. 2,11,125.00 issued by the petitioner herein had bounced due to want of sufficient funds, in his Bank account. It is said that on a request being made by the petitioner the complainant-firm supplied medicines through transport worth Rs. 12,11,125.00 which was received by the accused who handed over 5 cheques to cover the said amount payable by Union Bank of India. The cheques allegedly bounced for want of funds whereupon the complainant-firm orally informed the petitioner regarding the bouncing of the cheques and requested for payment but the accused appears to have evinced no response. Accordingly, the complainant-firm sent a registered notice to the accused requesting for payment of the outstanding amount within six months. Following non-compliance the complainant-firm sent a lawyer's notice on 29.9.2003 but the same also evinced no response. Hence, the complaint.
3. It has been submitted on behalf of the petitioner that the Patna Court had no territorial jurisdiction in the matter as the medicines were directly being received from Mumbai through transport and in return thereof the cheques issued in favour of the complainant-firm were drawn on Union Bank of India, Samastipur Branch, which were admittedly deposited at the Mumbai Branch of Central Bank of India. Therefore, according to the learned Counsel for the petitioner there was no cause of action taking place within the territorial jurisdiction of Patna Court and the Patna Court had no territorial jurisdiction to entertain the complaint and in the net result cognizance taken by the Patna Court was an abuse of the process of the Court. In this connection reference was made to the case of K. Bhaskaran v. Sankaran Vaidhyan Balan .
4. The second contention raised by the learned Counsel for the petitioner is that after dishonouring of the cheques the matter was sorted out between the parties and no action having taken by the complainant for over one year suddenly the complaint case was lodged after lapse of 14 months without disclosing the reasonable explanation for the delay and that too before a Forum which had no jurisdiction to try the case leave alone take cognizance. In this connection, it was sought to be pointed out that since the complaint had been filed for dishonour of the cheques, it would be presumed that the complaint was under Section 142 of the N.I. Act and in that case the complaint had to be filed within one month from the day immediately following the date of which the period of 15 days from the date of receipt of the first notice by the drawer expires. In this connection, the learned Counsel for the petitioner referred to the case of Sadanandan Bhadran v. Madhawan Sunil Kumar and SIL Import, USA v. Exim Aides Silk Exporters .
5. The third contention raised by the learned Counsel for the petitioner was that from the allegations made in the complaint no offence either under Section 406 or 420, IPC was made out. It was sought to be submitted that since the complaint was against the bouncing of cheques, there was no question of either cheating or criminal breach of trust and the Courts should be loath in contributing to the growing tendency in business circles to convert purely civil disputes into criminal cases permutated by the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors and if the person could some how be entangled in a criminal prosecution, there is a likelihood of imminent settlement. The learned Counsel in this connection drew my attention to the case of Indian Oil Corporation v. NEPS India Ltd. 111 (2006) CCR 128 (SC) : (2006) 4 BBCJ 116 (SC).
6. No counter-affidavit has been filed on behalf of the complainant (O.P. No. 2). However, in course of argument all the points raised by the learned Counsel for the petitioner were sought to be denied.
7. Admittedly, the High Court ordinarily would not interfere with a pending criminal proceedings in the exercise of its inherent powers but it may do so when it is necessary to prevent abuse of the process of the Court specialty when the proceeding is frivolous and vexatious or mala fide or when the proceeding has been instituted for a civil wrong as distinguished from an offence.
8. In the instant case, admittedly, the medicines were being supplied from Mumbai and the cheques were drawn on a Bank in Samastipur and were deposited in the Bank in Mumbai. Therefore, admittedly, no cause of action arose within the territorial jurisdiction of the Patna Court. The learned Counsel for the opposite-party No. 2 faintly sought to submit that the complainant-firm had an office at Patna where from the medicines were being supplied to the petitioner herein and the cheques issued by the petitioner herein were received at Patna wherefrom they were sent to Mumbai and as such the Patna Court had territorial jurisdiction to entertain the complaint. Be that as it may, in the absence of any pleadings to this effect through a counter affidavit no much reliance can be placed on the submissions advanced by the learned Counsel for the opposite-party No. 2. In the case of K. Bhaskaran (supra) the Apex Court had put in a word of caution inasmuch as it had observed that the locality where the Bank (which dishonoured the cheques) is situated cannot be regarded as the sole criterion to determine the place of offence and it must be remembered that offence under Section 138 of the N.I. Act would not be completed with the dishonour of cheques. It attains completion only with the failure of the drawer of the cheques to pay the cheque amount within expiry of 15 days mentioned in Clause (c) to the proviso to Section 138 of the N.I. Act. The Bench further observed that it is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque and in that context a place for that purpose would depend upon a variety of factors--it can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. The Bench further observed that Section 178 of the Cr.P.C. suggests that if there is uncertainty as to where, among different localities, the offence would have been committed, the trial can be had in a Court having jurisdiction over any of those locality and that the provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area the Court in either of the localities can exercise its jurisdiction to try the case. In the instant case, as stated earlier, none of the cause of action appears to have taken place within the territorial jurisdiction of the Patna Court and as such the continuance of the criminal proceeding against the petitioner would amount to an abuse of the process of the Court. So far as the second point regarding the limitation is concerned, it is the specific stand of the petitioner in his supplementary affidavit filed on 3.5.2005 that although there is a pleading in the complaint regarding sending of a registered notice requesting to pay the outstanding amount within six months, there is nothing on record to show that the notice had in fact been sent or it had been received by the petitioner. As a matter of fact, specific denial of receipt of notice has been made by the petitioner. Even if, it is accepted that the notice had been sent on 29.9.2003, the complaint came to be filed on 10.1.2004 which was for beyond the period of limitation. Sub-section (b) of Section 142 of the N.I. Act prescribes that cognizance of offence for dishonour of cheques can only be taken when such complaint is made within one month from the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act. In other words, Clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to cause of action and that is the failure to make the payment within 15 days from the date of receipt of the notice. In the instant case the date of receipt of notice has not been divulged by the complainant. The complaint has been filed much beyond the period of limitation in both cases and as such the taking of cognizance in the instant case would amount to an abuse of the process of the Court.
9. The offence of criminal breach of trust involves three ingredients, namely, (a) a person should be entrusted with property or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged. It contemplates the creation of a relationship whereby, the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed by him on the happening of a certain event. In the instant case, there was no question of any entrustment of property. As such it cannot be said that an offence under Section 406, IPC had been made out against the petitioner. Similarly, no offence under Section 420, IPC also appears to have been made out against the petitioner since there was no intention to cheat.
10. Having given my anxious thoughts to the matter in issue I am of the opinion that continuance of the criminal proceeding against the petitioner would amount to an abuse of the process of the Court. Accordingly, the criminal proceeding, so far as the petitioner is concerned is hereby quashed and the application is allowed.