Bishnu Dayal Gupta and Others vs State of Jharkhand and Another

Lakshman Uraon, J.—The petitioners have filed this application u/s 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. 46/1959. The said application being Writ Petition (Cr.) No. 169/2001 has been disposed of by order dated 20.12.2001.

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 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 u/s 138 of the Negotiable Instruments Act is made out against the petitioner. Bishnu Dayal Gupta and charge u/s 420, IPC 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.

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 u/s 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.

The learned Counsel for the O.P. No. 2 who has filed counter affidavit has submitted that the present application filed by the petitioner is wholly misconceived, devoid of any merit and is liable to be dismissed in limine which is for quashing of the order dated 19.5.2003, passed in Cr. Revision No. 41/2002 dismissing the revision application. This criminal miscellaneous petition amounts to second revision as such it is not maintainable in law. On similar grounds another writ application was filed for quashing the entire criminal proceeding in Writ Petition (Cr) No. 169/2001 and the same was disposed of by this Court. O.P. No. 2 has filed the complaint case in the year 1999. After issuance of warrant of arrest against these petitioners, they tried to settle the dispute with the complainant. Accordingly, memorandum of settlement was drafted and signed by the parties on the basis of which these petitioners were enlarged on bail. But no sooner the bail was granted to these petitioners, they moved back from their settlement and denied to pay back the money to O.P. No. 2. Moreover, they stopped coming to the Court below on one pretext or the other. Hence, O.P. No. 2 approached this Court in Writ Petition (Cr.) No. 1990/2003 for a direction for expeditious trial of this case. The learned Judicial Commissioner, Ranchi has already passed order for speedy trial. As such the petitioners prayed for withdrawal of the said writ application which was disposed of as withdrawn by this Court. Trial was proceeding on day-to-day basis and after examination of O.P. No. 2 in the said case, the petitioners have filed this present miscellaneous petition for quashing the entire proceeding with an intention to delay the trial. They obtained bail by false inducement of compromise and after granting bail they have withdrawn themselves from the terms of the compromise and are again trying to delay the trial of the complaint case. It was lastly submitted that in view of the earlier criminal writ application, filed by the petitioners for quashing the entire criminal proceeding, which has not been entertained, this present miscellaneous petition cannot be entertained and is liable to be dismissed.

The petitioner No. 3 is the father of petitioner Nos. 1 and 2 also of the O.P, No. 2 Pawan Kumar Gupta (the complainant), The family dispute could not be settled in spite of the best efforts made by this Court. Both the parties are alleging each other to have played fraud upon each other. Money suit filed by O.P. No. 2-complainant was not prosecuted as Title Suit No. 380/2002 has been filed in the Court of the learned Sub-Judge, Ranchi. This civil suit has been filed for partition and declaration of title but the criminal complaint case has been filed by the complainant O.P. No. 2 for defrauding in issuing cheque which was dishonoured as there was insufficient fund. There is no dispute that the cash amount of Rs. 40,92,000/- was deposited in the account of these petitioners by the complainant O.P. No. 2 which he collected towards running capital of the business started at Rajasthan which was subsequently closed. The complainant had issued notice u/s 138 of the Negotiable Instruments Act by registered post which was refused by the petitioners. However, notices sent under certificate of posting were received. Thus, the plea taken by the petitioners that mandatory provisions of Section 138 of the Negotiable Instruments Act have not been complied with has no leg to stand. The Magistrate has examined five witnesses, considered the evidence, oral and documentary, and found that the charges are made out to be framed against these petitioners as mentioned by him. Against that order criminal revision was preferred by these petitioners which was dismissed by the learned Revisional Court. Earlier the writ petition to quash the entire criminal proceeding was also disposed of. This criminal miscellaneous petition has again been preferred by these petitioners to quash the order of the Revisional Court who has directed that the charges are made out u/s 138 of the Negotiable Instruments Act and u/s 420, IPC to be framed against them. It does not mean that when the Magistrate at this stage did not find charge to be framed under Sections 120B and 406, IPC, then no offence is made but under other sections against these petitioners. It is a settled principle of law that charge can be amended later on also when evidence is so produced.

The learned Counsel for the O.P. No. 2 has relied upon a decision of the Special Bench of Hon''ble Patna High Court 1990(2) PLJR 693 and Dharampal and others Vs. Smt. Ramshri and others, and has submitted that this criminal miscellaneous petition in the garb of second revision application, after dismissal of the first one, cannot be entertained by this Court in exercise of its inherent power u/s 482, Cr.PC. The petitioner had preferred a writ petition under Article 227 of the Constitution of India which was also disposed of by this Court as the parties could not arrive at an amicable settlement by entering into compromise.

When considered the merit of the case and the order dated 19.3.2002, passed by the Magistrate which was confirmed by the learned Revisional Court in Cr. Revision No. 41/ 2002 dismissing the revision application filed by these petitioners, I find that there are sufficient materials to frame charge against there petitioners as found by the Magistrate after examining five witnesses produced by the complainant.

In view of this fact, I find that this criminal miscellaneous petition is devoid of any merit and is also not maintainable as this criminal miscellaneous petition has been preferred in the garb of second revision and also when the earlier Writ Petition (Cr.) No. 169/2001 was disposed of by this Court on 20.12.2001.

In the result, this criminal miscellaneous petition is, accordingly, dismissed.