SANDEEP DEVGUN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole petitioner , while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 19.4.2002 passed by Sri P.N.Sharma, Judicial Magistrate, 1st Class, Patna in Complaint Case No.178(C) of 2002. By the said order, learned Magistrate has taken cognizance of offences under Sections 420 and 120 B of the Indian Penal Code and also under Section 138 of the Negotiable Instrument Act (for short "N.I.Act - ).

(2.) SHORT fact of the case is that Opp. Party No.2 filed a complaint in the court of learned Chief Judicial Magistrate, Patna, which was numbered as Complaint Case No.178 ( C) of 2002 against altogether nine accused persons including the petitioner. The petitioner has been arrayed as accused No.6 in the complaint petition. It was alleged that accused persons had committed offences under Section 406, 420 and 120 of the Indian Penal Code and 138 of the N.I.Act. In the complaint petition it was asserted that an agreement was entered in between the complainant and M/s Televista India Pvt. Ltd., whereby the complainant was appointed as C& F Agent .As per agreement, the complainant was required to make deposit Rs.15, 00,000/- as security amount. However, the complainant initially made payment of Rs.14, 00,000/-. As per agreement, for minimum guarantee some of the amount was to be paid to the complainant by accused persons along with certain interest. It was alleged that Rs.1, 00,000/- out of first minimum guarantee was adjusted against minimum guarantee amount. The complainant had categorically asserted that the petitioner and other accused persons were directors of the said Company, i.e. M/s Televista India Pvt. Ltd. Agreement was entered on 1st May, 1998. Thereafter, despite rigorous persuasion neither as per the agreement, the godown was provided nor any payment was made to the complainant. In the month of September,1998, after vigorous persuasion by telephonic calls and personal visit of the complainant to accused Nos.2,4 and this petitioner issued a draft of Rs.50,000/- and two Cheques of Rs.25,000/- each against the mounting dues, issued on Corporation Bank , S.S.I. Branch, Noida, Uttar Pradesh, were handed over to the complainant, but the Cheques were dishonoured by the Bank on account of insufficiency of funds. After the Cheques were dishonoured , it was alleged by the complainant that he informed the accused persons including the petitioner. Even, in the month of October, 2001, two fresh Cheques for Rs.25, 000/- each were issued in favour of the complainant. However, those two Cheques were not honoured by the Bank. It has further been disclosed in the complaint petition that the complainant had also visited the office of the accused persons and tried repeatedly to keep in touch with the accused persons, who avoided. It was found that the office was locked. On the aforesaid allegation, the complaint was filed. After conducting enquiry, by the impugned order, i.e. order dated 19.4.2002 the learned Magistrate took cognizance of offences as indicated above.

(3.) SRI Madhuresh Prasad, learned counsel appearing on behalf of the petitioner has raised several grounds while assailing the order of cognizance as well as initiation of proceeding so far the petitioner is concerned. It was firstly argued that it was a case of commercial transaction and an agreement was entered in between the complainant and accused persons. According to Sri Prasad, learned counsel for the petitioner, it can be hardly a case of breach of terms and conditions of the agreement and it cannot be termed as a case of cheating or commission of any offence. While referring to averment made in paragraph-14 of the complaint petition, it was argued that the dispute was purely civil in nature and criminal proceeding may not be allowed to continue against the petitioner. According to him, the prosecution will amount of abuse of the process of the court. It was further submitted that the agreement was entered in the year 1998 and when the complainant felt it difficult to recover the due amount by adopting civil course due to the reasons of limitation, the complainant in a designed manner has filed the present complaint petition in the month of January, 2002. It was submitted that the failure to make payment will not attract any Penal Provision. Learned counsel for the petitioner has further argued that offence of cheating is not made out in view of the fact that the complainant had completely failed to establish that there were any mens rea on the part of petitioner to commit an offence of cheating and in absence of mens rea no offence under Section 420 of the Indian Penal Code is made out in the facts and circumstances of the present case. While arguing on the point of non-application of provision of Section 420 of the Indian Penal Code, Sri Madhuresh Prasad, learned counsel for the petitioner has heavily relied on a Judgment of Hon'ble Supreme Court, reported in (2002) 1 SCC 241(S.W. Palanitkar and Ors v. State of Bihar and Anr). Learned counsel for the petitioner has referred to paragraph Nos.8, 15 and 21 of the said Judgment. Learned counsel for the petitioner has further submitted that in any case, no offence under Section 138 of the N.I.Act is made out in the facts and circumstances of the present case. It has been argued that in the complaint petition, there is no assertion as to on which date, the Cheques issued by the petitioner's company was presented in the Bank, when it was returned on the ground of insufficiency of funds, no date of service of notice within the prescribed period has been mentioned nor it has been stated as to whether the complainant ever approached the accused persons to clear the dues within the specified period as per the basic ingredients of Section 138 of the N.I.Act. On this very point, learned counsel for the petitioner has referred to a Judgment of the Hon'ble Supreme Court, reported in (2009) 14 SCC 683(Jugesh Sehgar v. Shamsher Singh Gogi). Learned counsel for the petitioner has specifically referred to paragraph Nos. 12 and 13 of the said Judgment. In paragraph 12 of said Judgment, the provision of Section 138 of the N.I.Act has been quoted. However, in paragraph-13 of the said Judgment it has been clarified by the Hon'ble Supreme Court regarding ingredients of the said N.I.Act. It would be appropriate to quote paragraph 13 of the said Judgment, which is as follows: