BISHNU DAYAL GUPTA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The petitioners have filed this application under Section 482, Cr.P.C. praying for issuance of appropriate order/direction for quashing the judgment dated 19.5.2003, passed in Cr. Revision No. 41/2002 by Mr. Satya Prakash, 2nd Additional Judicial Commissioner-cum-Special Judge-I, CBI (AHD Scam). Ranchi, whereby and whereunder, he dismissed the revision application which was preferred against the order dated 19.3.2002, passed by Mr. P. Kumar, J.M. 1st Class in Complaint Case No. 46/1999 and further to set aside the order dated 19.3.2002, passed by Mr. P. Kumar in Complaint Case No. 46/1999. The petitioners had earlier preferred a criminal writ application for quashing the criminal proceeding in relation to the Complaint Case No. 46/1999. The said application being Writ Petition (Cr.) No. 169/2001 has been disposed of by order dated 20.12.2001.

(2.) The complainant O.P. No. 2 Pawan Kumar Gupta has stated in Complaint Case No. 46/1999 that he owned and managed a business in Khairtal in Rajasthan. The said business was originally a partnership business and was running under the name and style of Chanduka Oil Mills in partnership with the petitioner No. 2 Sushil Kumar Gupta, who consequently retired from the business and, thus, O.P. No. 2-complainant became the sole proprietor. Due to various difficulties the complainant was not in a position to run the said business and, therefore, he closed it and started collecting the running capital and in that process he collected a sum of Rs. 40,92,000/- in the form of cheque, draft and cash. Thereafter, the complainant O.P. No. 2 closed the business at Rajasthan. It was decided amongst the petitioners and the complainant that complainant would take a shop in Anand Bazar in which he would be a joint owner and hence, shop No. 4 was decided to be handed over to the complainant but on one pretext or the other the petitioners had been able to convince the complainant to deposit money with them and, accordingly, the complainant paid a sum of Rs. 40,92,000/- in between July, 1997 and March, 1998 at Ranchi. The amount which was deposited by the complainant with the petitioners was not returned to him in spite of several requests by him. Thus, he alleged that these petitioners played fraud upon him. To settle the dispute, an understanding was arrived on 21.9.1998, and a cheque of Rs. 40,92,000/- was given in favour of the complainant dated 28.10.1998, drawn on SBI Pandra Branch. The said cheque was presented by the complainant O.P. No. 2 but the same was returned unpaid by the Bankers due to insufficiency of fund. The complainant felt that he I was cheated by the petitioners, hence he filed a complainant case in the Court of CJM Ranchi being Complaint Case No. 46/1999. Before charge, the Magistrate examined five witnesses, namely, Birendra Pathak, Pradip Kumar, Mohan Kumar Sharma, Mukul Kumar @ Sushil Kumar and the complainant himself as witness No. 5, Pawan Kumar Gupta. The Magistrate perused the complainant petition along with the documents produced, considered the statements of the witnesses and found that charge under Section 138 of the Negotiable Instruments Act is made out against the petitioner. Bishnu Dayal Gupta and charge under Section 420, 1PC is made out against the petitioners, Sushil Kumar Gupta and Anand Swaroop Gupta. Hence, by order dated 19.3.2002, he ordered that charges be framed against these petitioners and directed them to be present physically on 26.4.2002. Against that order these petitioners filed a revision application before the Judicial Commissioner, Ranchi which was disposed of by Shri Satya Prakash, 2nd Additional Judicial Commissioner-cum-Special Judge. C.B.I. Ranchi dismissing their revision application by order dated 19.5.2003, in Criminal Revision No. 41/2002.

(3.) Assailing the said order of dismissal of the criminal revision filed by these petitioners, the learned Counsel for the petitioner has submitted that the complaint petition itself is misconceived one and is not maintainable. The complainant O.P. No. 2 has mentioned seven persons as witnesses without mentioning their full details including their parentage and address. The mandatory provision as required under Section 138 of the Negotiable Instruments Act has not been followed. Hence it is liable to be quashed. The learned Revisional Court has not considered these points and relied upon the chance witnesses. On these grounds it was submitted that the impugned order dated 19.5.2002, passed by the learned Revisional Court and order dated 19.3.2002, passed by the Magistrate in Complaint Case No. 46/1999 be set aside.