Gauhati High Court
Sandeep Kumar Bhagat And 2 Ors vs The State Of Jammu And Kashmir And Anr on 4 May, 2019
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/4
GAHC010090902019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.) 3/2019
1:SANDEEP KUMAR BHAGAT AND 2 ORS.
LT. S/O LT. SANAT KUMAR BHAGAT, R/O ASSAM ISPAT COMPLEX FIRST
FLOOR, N.S. ROAD, FATASIL, GUWAHATI-781008
2: JAI PRAKASH JAISWAL
S/O AYODHYA PRASAD JAISWAL
R/O HOUSE NO. 29 A
SAI SHARNAM
N.S. ROAD
BEELPUR
CHABIAL
GUWAHATI-781008
3: DHIRAJ KUMAR
S/O JAI PRAKASH JAISWAL
R/O HOUSE NO. 29 A
SAI SHARNAM
N.S. ROAD
BEELPUR CHABIAL
GUWHATI-78100
VERSUS
1:THE STATE OF JAMMU AND KASHMIR AND ANR.
REP. BY THE CHIEF SECRETARY , R.NO. 2/7, 2ND FLOOR, MAIN BUILDING,
CIVIL SECRETARIAT, JAMMU-180001
2:ALI MOHAMMAD WANI
S/O ABDUL SALAM WANI
R/O TRAL
BALLA
KASHMIR (J AND K)
PIN-19212
Advocate for the Petitioner : MR. A M BORA
Advocate for the Respondent :
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BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 04-05-2019 Heard Mr. A.M. Bora, learned senior counsel assisted by Mr. J. Patowary, learned counsel for the petitioners.
2. Issue notice, returnable within 4(four) weeks.
3. Petitioners are to take steps for service of notice upon all the respondents by the registered post with A/D.
4. The complaint case, quashing of which is sought in this petition, was filed before the Learned 1st Class Judicial Magistrate, Tral, Kashmir (J & K).
5. Maintainability of this petition will be considered on the next returnable date, though, learned Senior Counsel for petitioners submits on the strength of the decision of the Hon'ble Supreme Court in Navinchandra N. Majithia Vs. State of Maharashtra and Others reported in (2000) 7 SCC 640, that this petition is maintainable.
6. Learned Senior Counsel for the petitioners has sought for suspending the proceedings initiated by the Learned 1st Class Judicial Magistrate, Tral, Kashmir (J & K) in the meantime, contending that no case has been made out of committing the offence under Section 420 RPC which is equivalent to 420 IPC. It has been submitted that though no case has been made out, Learned 1st Class Judicial Magistrate, Tral, Kashmir (J & K) took cognizance of it and issued summons to the petitioners, vide order dated 14.09.2018.
7. The aforesaid complaint filed by the respondent No.2 before the Court at Tral reads as follows:
"In the matter of:- Complaint under Section of 406, 420, 506 of RPC. May it please your honour:-
The complaint is humbly submits as under:-
1. That the complainant is the permanent resident of the State of J & K Page No.# 3/4 and is residing within the territorial jurisdiction of this Hon'ble Court.
2. That the complainant is the partner and authorized signatory of M/S Sri Balmukund poly plast Pvt. Ltd. having its branch/ sister concern at Tral and Anantnag, copy of the partnership deed is annexed with this complainant for kind perusal of this Hon'ble Court as Annexure-A
3. That the accessed persons are the Directors of Shree Sanyeeji Steel and Power Ltd.
4. That the complainant company and the accused persons were some business transactions from 2012. That the complainant and accused persons were doing the business on trust, that the accused persons given a cheque bearing No.060120 dated 10.07.2018 to complainant company for liquidating the amount to the tune of rupees One Crore only of the complainant unit at Tral, copy the Cheque is annexed with this complainant as Annexure-B.
5. That the accused has used the goods supplied to them to earn the profit.
6. That when the complainant approached the ICICI branch Tral for drawing the cheque on 17.07.2018 the complainant came to know that the cheque is Non-MICR and cannot be drawn.
7. That the accused has given the above mentioned cheque intentionally, dishonestly to deceive the complainant and they were knowing that the said cheque is Non-MICR.
8. That when the complainant realized that that the accused have cheated him by given a Non-MICR cheque he called the accused from his Tral office of the company the accused have given him threat to life by saying that if further call is made to them they can kill at your house without letting anybody know.
9. That the offence has been occurred within the territorial jurisdiction of this Hon'ble Court.
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10. That prime facie by the contents of the complainant offences under Section 406. 420, 506 of RPC are made out.
In the premises it is there prayed that the Hon'ble Court may be pleased to take cognizance of complainant under Section 406, 420, 506 of RPC.
Complainant"
8. Though, the aforesaid complaint relates to alleged commission of offences under Sections 406, 420, 506 of RPC, Learned 1 st Class Judicial Magistrate had taken cognizance only in respect of offence under Section 420 of RPC.
9. It have been submitted by the learned Senior Counsel for the petitioners that even after taking the aforesaid complaint at its face value, no ingredients which would constitute offence under Section 420 of RPC can be said to be present, and one of the ingredients for invoking Section 420 of RPC is the existence of intention to cheat from the initial stage of the transaction, of which nothing has been mentioned in the complainant.
10. It has been accordingly, submitted that no case has been made out for invoking Section 420 of RPC, as had been done by the Learned 1st Class Judicial Magistrate, Tral.
11. Accordingly, learned Senior Counsel for the petitioner has prayed for suspending the proceedings before the Learned 1st Class Judicial Magistrate, Tral as an interim measure.
12. This prayer for suspending the proceedings will be considered on the next returnable date.
Till then, it is directed that the petitioners will not be subjected to any coercive action in connection with the proceeding initiated by the Learned 1 st Class Judicial Magistrate, Tral in CR Case NO.46/Meem.
13. List the matter again on 14.06.2019.
JUDGE Comparing Assistant