Allahabad High Court
Prem Chand Jain vs State Of U.P. And Another on 27 May, 2013
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 44 Case :- APPLICATION U/S 482 No. - 1057 of 2012 Applicant :- Prem Chand Jain Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjay Kumar Dwivedi Counsel for Opposite Party :- Govt. Advocate,Ronak Chaturvedi Hon'ble Ramesh Sinha,J.
Heard Sri Sanjay Kumar Dwivedi, learned counsel for the applicant, learned AGA for the State and Sri Ronak Chaturvedi, learned counsel for opp. party No.2.
The applicant, through the present application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the entire criminal proceeding and quash the impugned order dated 25.10.2011 passed by learned Additional Chief Judicial Magistrate, Court No.7, District Agra in complaint case No.637 of 2011, Mahendra Kumar Jain Vs. Prem Chand Jain, under Sections 406, 420, 504, 506 I.P.C., Police Station Loha Mandi, District Agra.
Brief facts of the case are that the applicant had taken certain goods to the tune of Rs.2,03,304/- from opp. party No.2 (here-in-after-referred to as "the complainant") and in respect of the said transaction, the applicant had given a cheque bearing No.389016 of Rs. 1 lac drawn on Dena Bank on 23.12.2009 and had also given another cheque of Oriental Bank bearing No.108419 of Rs.75,000/- on 23.2.2010, The aforesaid cheques were placed for encashment by the complainant through its bank but the same were returned back without payment with an endorsement of 'no sufficient amount in the account'. It was stated in the complainant that on 8.3.2011 the complainant came to know that the applicant was was trying to sell off his shop, then he met the applicant and demanded his money back, but the applicant made excuses and when the applicant insisted for the payment, he was abused and threatened for dire consequences. Thereafter, the applicant also approached the concerned police station for lodging an FIR but the same was not lodged and he also sent an application through registered post to DIG and SHO, Loha Mandi, District Agra for registration of the case, but the same was not lodged. He filed the an application under Section 156(3) Cr.P.C. before the A.C.J.M., VIIth, Agra. The said application of the complainant was treated as complaint by the learned Magistrate and thereafter the statement under Sections 200 and 202 Cr.P.C. of the complainant and its witnesses were recorded by the learned Magistrate. The applicant was summoned by the Court below for the offence under Section 406,420,504,506 I.P.C. vide summoning order dated 25.10.2011.
The applicant has, thus, approached this Court by challenging the impugned summoning order as well as entire criminal proceedings of the complaint by means of the present 482 Cr.P.C. application.
It has been contended by learned counsel for the applicant that from the perusal of the complaint, the offence, if any, which is made out against the applicant is under Section 138 of N.I. Act but the present complaint has been filed by the complaint for the offence under Sections 406,420,504,506 I.P.C., hence, the prosecution of the applicant should be quashed on this ground alone.
Sri Ronak Chaturvedi, learned counsel for opp. party No.2 has vehemently opposed the prayer for quashing and has submitted that the cognizable offence is disclosed against the applicant for the offence under Sections 406,420,504,506 I.P.C. and the learned Magistrate after recording the statement under Section 200 and 202 Cr.P.C. of the complainant and its witnesses has rightly summoned the applicant for the trial. In reply to the argument of learned counsel for the applicant that the offence, if any, which is said to have been made out against the applicant is under Section 138 N.I. Act for which he can be prosecuted under the N.I. Act, learned counsel for opp. party No.2 has submitted that the said argument of the learned counsel for the applicant has no force as the applicant had issued two cheques in favour of the complainant fully conscious about the fact that he had no money in his account for payment of the said cheques, hence, he has committed the offence under Section 420 I.P.C.. He has also drawn the attention of this Court towards the illustration (d) of Section 415 I.P.C. which is quoted hereinbelow:
" (d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats."
He further submits that in view of the above, the applicant is liable to be prosecuted by the Court of law.
In support of his contention, learned counsel for opp. party No.2 has placed reliance on the judgment of the Apex Court in the Case of Nagpur Steel Alloys Pvt. Ltd. Vs. P. Radhakrishna alias Rajan and others, reported in 1997 SCC (Crl.)1073 in which it has been held by the Apex Court that merely because the offence was committed during the course of a commercial transaction would not be sufficient to hold that complaint did not warrant a trial. It was further observed by the Apex Court that whether or not the allegations in the complaint were true was to be decided on the basis of the evidence to be led at the trial in the complaint case.
Considered the submissions advanced by the learned counsel for the parties. From the perusal of the material on record, it is evident that the cognizable offence is disclosed against the applicant and the learned Magistrate has rightly summoned the applicant for the trial under Section 406,420,504,506 I.P.C. The contention of the learned counsel for the complainant also finds force as it is apparent from the present complaint that the applicant had given two cheques in favour of the complainant with respect to the purchase of the goods from the complainant being conscious of the fact that the said cheque would be dishonoured because of insufficiency of fund in his account, hence, he has intentionally deceived the complainant and thereby dishonestly induced the complainant to deliver the article intending not to pay.
In view of the above, no ground for quashing the impugned order as well as entire proceedings of aforesaid case is made out which may call for any interference by this Court in exercise of its inherent power under Section 482 Cr.P.C. The present 482 Cr.P.C. application lacks merit. It is accordingly dismissed.
Order Date :- 27.5.2013 NS