Banshi Dhar Singh vs State and Another

Deoki Nandan Prasad, J.—This application has been filed u/s 482 of the Code of Criminal Procedure for quashing the order dated 17.5.2001, whereby the learned Judicial Magistrate took cognizance for the offence u/s 420, IPC in connection with C/1 case No. 1097 of 2000.

It is alleged that in October, 1996, the Informant took loan from M/s. Trade Well Finance Limited to the tune of Rs. 1,50,000/- for which some papers and cheques were kept in security. The said loan was duly cleared and the complainant against asked for a sum of Rs. 6,00,000/- out of which Rs. 3,00,000/- was granted as loan. The cheques and other documents retained by the said Company and the said cheques were deposited by the Establishment of the petitioner, but it could not be encashed. Notices were also given by the Establishment to the Informant but on receipt of the said notice the petitioner could know about the such presentation of the cheques. As such the complaint case was filed being C/1 Case No. 1097/2000 registered under Sections 420, 467, 468 and 471 of the Indian Penal Code.

As inquiry u/s 202, Cr.P.C. was held and after perusal of the evidence collected during inquiry, the learned Magistrate took cognizance for the offence after finding prima facie case.

A counter affidavit has also been filed on behalf of the opposite party No. 2 claiming therein that in the year 1996 the petitioner had applied for a loan of Rs. 1,50,000/- from M/s. Trade Well Finance Ltd. And as per the rule of the Company they required fixed deposit of Rs. 75,000/- and he deposited Rs. 75,000/- on 12.10.1996. The loan was cleared and the clearance certificate was also issued by the petitioner on 14.11.1997. But, again a demand of Rs. six lakh was made, out of which Rs. three lakhs was sanctioned by agreement dated 5.11.1997 and for this amount the complainant deposited with the Establishment a sum of Rs. 2,50,000/- by way of FDR. It was the accused who misused the Bank cheques in the name of the Company. The learned Court below after finding prima facie case rightly took cognizance in the case and the whole matter is based on the facts which is to be considered and decided in course of trial and, therefore, the petition is fit to be dismissed.

The learned Counsel appearing on behalf of the petitioner submitted that the Court below committed error in taking cognizance as the allegation as made out is of civil in nature and the complainant had taken a loan of Rs. six lakhs from M/s Trade Well Finance Limited, Jamshedpur, which will be evident from Annexure-2, the receipt and the said amount was disbursed to the complainant which will also be apparent from the ledger of the Central Bank of India, Annexure-4. It is further submitted that M/s Trade Well Finance Limited presented the cheques in the Bank but the same was dishonoured and for which Complaint Case No. 83/2000 was already filed and the present complaint case has been filed on 1.12.2000 after institution of the complaint cases filed by M/s Trade Well Finance Ltd. in order to harass the petitioner and, therefore, the order impugned is fit to be quashed.

On the other hand, the learned Counsel appearing on behalf of the opposite party No. 2 contended before me that there is no illegality in the order impugned as the learned Court below after Finding prima facie case took cognizance for the offence u/s 420, IPC and the allegation as made clearly constitute the offence. It is further argued that actually the petitioner had committed cheating and actually against Rs. six lakhs the petitioner had already taken back Rs. three lakhs by way of FDRs and share certificates which will be evident from Annexure-A attached to the counter affidavit and as such the petition is fit to be dismissed.

From going through the record, it is apparent that the allegation made apparently constitute the offence as some of the cheques were dishonestly presented before the Bank inserting various sums and different dates at the instance of the accused. Legal notice was also sent stating everything to the petitioner and that notice was sent much earlier to the complaint case filed by them. However, there appears case and counter case pending in the Court below and trial is also going on in some of the cases and the allegation as made out is also containing the facts which is only to be considered at the time of trial.

Thus, in such situation, this Court will be reluctant in quashing the entire criminal proceeding at the initial stage. It is well settled that where the allegation made in the complaint and accepted in its entirety constitute prima facie the offence then the entire proceedings cannot be quashed. It is also settled that the power of quashing of the complaint should be exercised sparingly by the Court when the matter relating to the evidence of fact is involved for consideration. In such situation, I do not find any merit in this application, which is accordingly dismissed.