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Judgment
D.G.R. Patnaik, J.—Petitioners have invoked the inherent powers of this Court u/s 482, Cr.P.C, praying for quashing the entire criminal proceedings initiated against them pursuant to the order dated 16.02.1999 passed in C.P. Case No. 1170 of 1998, passed by Shri A. K. Tiwari, Judicial Magistrate, 1st Class, Dhanbad, whereby cognizance of the offence u/s 406 I.P.C. was taken against the petitioners with a direction that they should appear and face trial in the case.
The main grounds in support of the prayer is that the learned court below has passed the order of cognizance without application of judicial mind and without considering the allegations and the facts and circumstances of the case in proper perspective, and that the continuance of the proceedings against the petitioners will amount to abuse of the process of law and perpetrate injustice as even on the basis of the entire allegations, no offence u/s 406 I.P.C. can be made out against any of the petitioners. The further ground is that the learned court below has failed to appreciate that the instant case has been filed by the complainant/Opposite Party No. 2 apparently with mala fide intentions to seek revenge against the petitioners and by way of a counter blast to the criminal case instituted against him for the offence u/s 138 of the Negotiable Instruments Act.
Heard the learned Counsel for the petitioner and the State.
For better appreciation of the grounds advanced by the petitioners, reference to the prosecution case in brief may be made:
The case against the petitioners was registered on the basis of the complaint filed by the Opposite Party/complainant, vide C.P. Case No. 1170 of 1998 before the Chief Judicial Magistrate, Dhanbad. The allegations as appear in the complaint petition is that on 25.04.1994, the complainant entered into an agreement of agency with M/s Chamolium Limited, manufacturers of Lubricants, for the purposes of enabling him to operate the Company Sales depot for the sale of the Company''s products at Dhanbad. The agreement was operative for the period of two years i.e. till 26.04.1996. It is claimed that the present petitioners are representatives of the Company and on 22.02.1996 and again on 28.06.1986, the petitioners approached the complainant at his office for the Minutes of some meeting and they obtained six blank cheques from the complainant, bearing his signatures on the plea that the same need to be retained by them by way of security for the business transactions with the Company, and had assured him that the blank cheques would not be used in any way and that it would be retained only by way of security. The complainant has further alleged that after expiry of period of validity of the cheques, he demanded return of his cheques vide his notice dated 21.07.1997 but the cheques were not returned to him and after expiry of the period of the agreement, the accused persons allegedly forged the blank cheques by filling up certain amounts, therein, and presented the said cheques at the Bank, which, however, on account of lack of sufficient funds in the complainant''s Bank''s Account were dishonored. Thereafter, a case allegedly on false accusations was filed against the complainant by the accused persons at Madras in which the complainant secured his bail on 25.09.1998 and having realized that the accused persons had dishonestly misappropriated the cheques belonging to him, had filed the instant case against the petitioners.
On perusing the complaint petition and the statements of the complainant and his witnesses recorded on solemn affirmation, the learned court below proceeded to take cognizance for the offence u/s 406 I.P.C. against the petitioners.
As mentioned above, challenge against the impugned order of cognizance has been made by the petitioners on the ground that the case has been filed entirely with mala fide motives and with a dishonest intention to apply pressure upon the petitioners for withdrawing the criminal case instituted against the complainant for the offence u/s 138 of the Negotiable Instruments Act and therefore it is a clear case of misuse of the process of the court. In support of his submissions, learned Counsel has referred to the judgment of the apex Court in the case of State of Haryana v. Bhajan Lal reported in 1992 SCC 426 and to an earlier decision of the apex Court in the case of R.P. Kapur Vs. The State of Punjab, and also to a recent judgment of the Supreme Court in the case of Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, and argues further that a bare reading of the complaint petition clearly indicates that the criminal proceeding as instituted by the complainant is entirely with mala fide intentions and with an ulterior motive for wrecking vengeance on the petitioners. Learned Counsel argues further that even from the admitted facts appearing in the complaint petition, the complainant was appointed as an agent for selling the lubricants manufactured by the Company at its sales depot at Dhanbad and, as such, the appointment was made under the terms of an agreement with him, which was operative for a period of two years and in course of the business transactions, substantial quantities of lubricants were supplied to the complainant for sale at the Company''s depot against commission payable to him as the agent. It was against the amounts payable by the Complainants towards cost of the materials supplied by the Company that the post-dated cheques were obtained from him as Security for realization of the payments due and these cheques were later presented at the Bank for encashment but when the cheques were dishonored, a notice was issued to the complainant, at least five months prior to the date of institution of the present case by him and in which, cognizance of the offence u/s 138 of the Negotiable Instruments Act was taken against the complainant.
Learned Counsel for the State on the other hand, submits that the allegations in the complaint read as a whole clearly indicates that petitioners had obtained Blank cheques from the complainant by dishonest means and later, misappropriated the same by filling arbitrary amounts, therein, and by attempting to encash the amount from the Bank. Though the attempt to encash the cheques was frustrated on account of dishonor made by the Bank, yet the facts clearly suggests that petitioners had committed criminal misappropriation by trying to utilize the cheques to their dishonest advantage. Learned Counsel adds further that though earlier in Bhajan Lal''s case (Supra), one of the categories indicated by the Supreme Court for exercising the inherent powers u/s 482 Cr.P.C. was that where a criminal proceeding is manifestly attended with mala fides and the proceeding is maliciously instituted with an ulterior motive for wrecking negligence on the accused, it can constitute a ground for quashing the proceedings, but in the recent case of Jhandu Pharmaceuticals (Supra), the Supreme Court while referring to the judgment in Bhajan Lal''s case, has clarified that the allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.
In the case of Jhandu Pharmaceuticals Works Ltd. (Supra), the Supreme Court while explaining the powers u/s 482 of the Code of Criminal Procedure has observed as follows:
Section 482 of the Cr.P.C. envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code (ii) to prevent abuse of the process of the Court and (iii) to otherwise secure the ends of justice.
The observations further made are that "it is neither possible nor desirable to lay down any inflexible rule, which would govern the exercise of inherent jurisdiction. The guidelines laid down are that the inherent jurisdiction under the Section (Section 482), has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself and is meant to be exercised to do real and substantial justice for the administration of which alone Courts exists. It has been further observed in the same judgment that "in the exercise of the powers, the Court would be justified to quash any proceedings if it confirms that initiation/continuance of it amounts to abuse of the process of Court or quashing of the proceeding would otherwise serve the ends of justice.
It would also appear from the observations in the case of Zandu Pharmaceutical''s case (supra), that though the Supreme Court has observed that the allegations of mala fide against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings, yet it has also observed that "on reading the complaint as a whole, if it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or the offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event, there would be no justification for interference by the High Court." In other words, where on reading the complaint as a whole alongwith the statement of the complainant recorded on oath, even though the ingredients of the offence are disclosed but there is material to show that the complaint is mala fide, frivolous and vexatious, then the inherent powers may be exercised for quashing the proceedings as continuance of the proceedings would amount to abuse of the process of the Court.
In the instant case, even as per the allegations made in the complaint petition, the complainant had entered into a business contract of Agency with the Company represented by the petitioners. The date of agreement admittedly is 25.04.1994 and the same was operative for a period of two years i.e. till 24.04.1996. Admittedly, the complainant had received materials, namely, the Lubricants manufactured and supplied by the Company, during the period of his agency which he was supposed to sell at the Company''s depot and to pay the price thereafter to the Company and against which he was entitled to his commission. Admittedly, the complainant had given the cheques to the representatives of the Company by way of security against payment, which may fall due to the Company from him. Admittedly, the complainant received a legal notice, informing him that the cheques deposited by him were presented at the Bank and the same were dishonoured and the complainant was called upon by a legal notice to pay up the amounts, which was the dues payable by him against the supply of the lubricants. Admittedly, a case for dishonour of cheque was filed against the complainant in which cognizance u/s 138 of the Negotiable Instruments Act was taken against him by a competent court of law and in which complainant had appeared and secured his bail. Admittedly, the case filed against the complainant was about five months prior to the institution of the present case. It may also be noted here that it is not the case of the complainant that he had deposited the cheques with the representatives of the Company at the initial stage when he was inducted as an agent under the Company. On the other hand, according to him, it was after a lapse of the period of agency in the agreement i.e. on 28.06.1996, that the cheques were obtained from him. It is not the case of the complainant that the period of agency of the complainant under the Company was extended beyond the initial period of two years by any fresh agreement. It is not explained by him as to why after the expiry of the period of agency under the original agreement, he would be insisted upon delivering Bank cheques to the representatives of the Company and why he should accede to the demand for the blank cheques. Furthermore, even after the alleged handing over of the cheques to the accused persons, despite the determination of the agency under the Company, the complainant appears to have remained silent without making any demand for return of the same for more than one year. The averments in the complaint further indicate that the cheques were not immediately presented at the Bank. Rather, the validity period of the cheques had already lapsed on the date when they were allegedly presented at the Bank. These are inferences which can legitimately be drawn on the bare reading of the complaint petition. The fact that a criminal prosecution for the offence u/s 138 of the Negotiable Instruments Act was initiated by the Company represented by the petitioners prior to the institution of the instant case by the complainant does clearly indicate that the allegations in the present case appear to have been raised by way of defence in the criminal proceedings pending against him for the offence u/s 138 of the Negotiable Instruments Act and the obvious motive is to create evidence in defence in the aforesaid case. The facts and circumstances of the case disclose materials to show that the complaint is mala fide, frivolous and vexatious and filed by the complainant as a counter blast to the case instituted against him and with a view to apply pressure upon the petitioners.
Even otherwise, the allegations in the complaint do not specify as to which of the petitioners approached him on any specific date and had obtained the cheques from him. The allegations are, therefore, vague and unspecific.
In the light of the above discussions, I find merit in this application and, accordingly, the same is allowed. The entire criminal proceedings pending against the petitioners in the court of learned judicial Magistrate, First Class, Dhanbad or his successor in Office vide C.P. Case No. 1170 of 1998 and the order of cognizance dated 16.02.1999 passed by the Court below for the offence against the petitioners.