Patna High Court
Rajwant Singh vs The State Of Bihar And Anr. on 15 November, 2006
Equivalent citations: 2007(1)BLJR15
Author: Sadanand Mukherjee
Bench: Sadanand Mukherjee
JUDGMENT Sadanand Mukherjee, J.
Page 0016
1. Heard.
2. This is an application for quashing the order dated- 1.3.2005 passed by Judicial Magistrate, Ist Class, Patna in Complaint Case No. 101(C) of 2005, by which the learned Magistrate took cognizance of offence against the petitioner alleged to be punishable under Sections 405 and 420 of the I.P.C. and Section 138 of the N.I. Act and also to quash the entire criminal proceeding initiated against the petitioner.
3. The complaint case was lodged by opposite party No. 2 Birendra Kumar, stating therein, that settlement agreement dated- 28.6.2004 was made between Indo-China Products through its C.E.O (petitioner), accused No. 2 Vivek Sheel and the complainant. As per settlement agreement, accused No. 2 Vivek Sheel (non-petitioner) had given Rs. 3 lacs by way of post dated cheques to the complainant and in return the complainant supplied the required products. It is said that out of seven post Page 0017 dated cheques only one cheque dated- 12.8.2004 of Rs. 27,000/- was honoured. It is alleged that further accused Viveksheel and Sushil Kumar Singh issued three cheques which were dishonoured due to insufficient fund vide Bank Memo dated-30.11.2004 and 1.12.2004 respectively. Accused Vivek Sheel and Sushil Kumar Singh (not the petitioner) were in full knowledge that there was no sufficient amount in their account and inspite of that they issued cheques and in this way the accused persons have cheated and misappropriated Rs. 1,50,000/- of the complainant under pro-planned conspiracy. A legal notice was also issued through registered post on 7.12.2004 by G.P.O. Patna, within one month of cheque being dishonoured, but inspite of receiving the legal notice, neither they sent reply of legal notice nor paid Rs. 1.50 lacs to the complainant within stipulated period. The complainant contacted the accused on telephone but they refused to makes any payment and threatened with dire consequences. On the aforesaid premises, cognizance was taken for the offences as stated above.
4. In the application for quashing it has been submitted that the petitioner is actually stationed at Bangalore and has been made just a proforma accused. It has also been submitted that in the whole complaint petition, there is no iota of allegation against the petitioner, rather all the allegations are against accused No. 1 Vivek Sheel and accused No. 2 Sushil Kumar Singh. With reference to the complaint petition it is pointed out that the petitioner had merely signed the settlement agreement dated.-28.6.2004 to finalise the account between complainant and accused Nos. 1 and 2 on one hand and between the complainant and accused No. 3, i.e., the petitioner on other hand. With reference to the settlement agreement (Annexure-2) it is indicated that accused Nos. 1 and 2 was to make whole payment in favour of the complainant for full and final settlement in between them. On the other hand accused No. 3 had to make certain payment and in return, the complainant, proprietor of M/s Synergy will have to despatch the stock worth Rs. 8.5 lacs be accused No. 3 lying with M/s Synergy to the firm of petitions, i.e., I.C.A.P. Bangalore. It has also been submitted that in view of above said agreement, the petitioner made payment of Rs. 1.3 lacs by different cheques, but in contravention of the above said agreement the complainant did not despatch the goods worth Rs. 8.5 lacs. It is also stated that there seems to be some disputes between the complainant and accused Nos. 1 and 2 and just to settle the score with them, the complainant made this petitioner an accused to pressurise and coerce him with a view to misappropriate the goods worth Rs. 8.5 lacs which is still in possession of the complainant. The petitioner has not issued any cheque to the complainant which is alleged to have bounced.
5. With reference to the solemn affirmation of the complainant (Annexura-4 ) it has been pointed out that no allegation of dishonour of cheque or cheating has been levelled against the petitioner. Admittedly, no notice was issued to the petitioner. With reference to the provisions of Section 138 of N.I. Act 1881, it has been pointed out that the person who has issued the cheques and the same is returned by the Bank unpaid either because of insufficiency of amount to honour the cheques or it exceeds the amount alleged to be paid from that account, such person shall be deemed to have committed an offence under this section, but no cheque has been issued by the petitioner, and it is mainly because of bouncing of cheques. No cognizance can be taken against the petitioner under Section 138 of N.I. Act. It is also stated that even if the complaint is taken at its face value and accepted, the Page 0018 same does not primafacie constitute any offence against the petitioner who is accused No. 3. It is pointed out that if violation of settlement agreement is attributed to the petitioner it is violation of contractual allegation between the parties and for violation of contractual allegation by another person the petitioner could not be made responsible. It has been pointed out that the petitioner is sufferer and the goods worth Rs. 8.5 lacs has not been returned.
6. So far as legal position is concerned, as indicated in several decisions of the Hon'ble Supreme Court, the only relevant question for quashing the complaint is whether the allegation made in the complaint even if they are taken at their face value and accepted in their entirety, do not primafacie constitute any offence or make out a case alleged against the accused. It is well settled that only because civil remedy is available, if there are ingredients of the criminal offence, criminal law remedy is not barred. In this connection it is relevant to quote the observation of the Hon'ble Supreme Court enunciating the principles relating to exercise of the jurisdiction under Section 482 of the Code of Criminal Procedure to quash the complaints and criminal proceeding which are relevant for the present purposes. These are as follows.
7. The Hon'ble Supreme Court in the case of Indian Oil Corporation v. NEPC India Ltd. and Ors. reported in (2006) 6 S.C.C. page 736 has hold as follows:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/ malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out; (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civi1 proceeding are different from Page 0019 a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract for which a civil remedy is available or has been availed of, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not
8. From the above discuss on, it appears that the notices for the purpose of offence under Section 138 of N.I. Act was issued against non-petitioner in view of bouncing of cheques as stated above which were issued by accused Nos. 2 and 3. This petitioner was only a party to the contractual agreement and the offence Under Section 138 of the N.I. Act cannot be attributed to him. In the enters complaint, allegation against the petitioner is that he was also a signatory in the contractual agreement, an agreement which is the basis of complaint, although it appears from the complaint case that the same was not annexed. There is description of entire account and in the complaint petition on the face value the allegation is levelled against accused Nos. 2 and 3.
9. The Hon'ble Supreme Court in another case however further held as follows:
However, there is a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
(G. Sagar Suri v. State of U.P. )
10. From perusal of the complaint petition it appears that accused Nos. 2 and 3 can be said to be responsible prima facie for bouncing of cheques, and on the face value prima facie this petitioner has been made liable only for breach of contractual obligation and at best the petitioner can pursue civil remedy, if such remedy is available to him and if the facts in the complaint on its face value is taken as correct.
11. There is substance in the submission that even if the case is seen even purely on the complainant's point of view, no criminal liability can be attached against the petitioner and pursuing of criminal proceeding relating to this petitioner is an abuse of the process of the court in view of discussion made above. Accordingly, proceeding against the petitioner is liable to be quashed. Accordingly, the proceeding, so far as it relates to the petitioner (accused No. 3), namely, Rajwant Singh in Complaint Case No. 101 (C)/ 2005 stands quashed.
12. This application is therefore allowed.