Chandra Shekhar Pathak vs State of M.P. and Another

D.K. Paliwal, J.—This petition u/s 482 of Cr.P.C. is for quashing the cognizance taken by learned JMFC, Gwalior, in Criminal Case No. 4605/2006, whereby direction has been given to register the private complaint under Sections 420, 467, 468 and 471 of IPC. The brief facts of the case are that respondent No. 2/complainant filed a private complaint alleging that he is a contractor and also Director of Bindra Builders and Contractor Pvt. Ltd. and in the year 2000 he entered into an agreement with the grand-father of petitioner, namely Nirbhay Das Pathak, by which they agreed to construct flats on family land of petitioner for commercial purposes. After the death of Shri Nirbhay Das Pathak, complainant worked with the petitioner and his other family members. The land on which residential complex was to be made was mortgaged with State Bank of India. In order to release the said land, the complainant issued following six post-dated cheques of State Bank of India, Branch G.R.M.C., Gwalior, in favour of the petitioner on 7.1.2002:-

Cheque No. 977198 dt. 7.1.02 of Rs. 50,000/-

Cheque No. 977199 dt. 12.1.02 of Rs. 75,000/-

Cheque No. 977200 dt. 17.1.02 of Rs. 50,000/-

Cheque No. 656321 dt. 21.1.02 of Rs. 75,000/-

Cheque No. 656322 dt. 28.1.02 of Rs. 75,000/-

Cheque No. 656323 dt. 31.1.02 of Rs. 75,000/-

It is further alleged that petitioner withdrew total amount of Rs. 1,25,000/- of cheque Nos. 977198 and 977199. Thereafter, on 24.1.2002, the petitioner came to the complainant and stated that he wants the amount of Cheque Nos. 977200, 656321, 656322 and 656323 in cash. The complainant in presence of Naresh Thakur and Anil Bhalla gave the amount of Rs. 2,75,000/- to the petitioner and his father and demanded the aforesaid four cheques back, but the petitioner did not return the aforesaid cheques to the complainant. Thereafter, when the complainant went to State Bank of India, he came to know that one of his cheque was bounced and when he checked his account detail, he came to know that petitioner has withdrawn Rs. 75,000/- of cheque No. 656322 on 15.11.2002 by manipulating the date of the said cheque. Thereafter respondent/complainant filed the private complaint. Upon this complaint, the learned Magistrate has taken cognizance against the petitioner. Being aggrieved, this petition has been filed.

It is submitted that the criminal proceeding against the petitioner is illegal. The petitioner never played any fraud against respondent No. 2/complainant. He withdrew the amount of Rs. 75,000/- by cheque No. 656322 which was issued on 28.7.02 and he has not manipulated the date of cheque. The complainant has issued the aforesaid cheques to the petitioner for the business transaction, out of which, one cheque No. 656323 has been dishonoured on account of insufficient amount in the account of complainant. Thereafter, petitioner demanded the amount from the complainant, but even after service of notice, the said amount was not paid, therefore, the complaint has been filed by the petitioner upon which cognizance u/s 138 of the Negotiable Instruments Act has been taken against the complainant. The complainant for defending himself from the criminal proceeding has filed this false private complaint by suppressing the fact of earlier criminal complaint registered against him. The complainant has issued three serial cheques in favour of the petitioner which are as under:-

Cheque No. 656321 dt. 21.7.02 of Rs. 75,000/-

Cheque No. 656322 dt. 28.7.02 of Rs. 75,000/-

Cheque No. 656323 dt. 31.7.02 of Rs. 75,000/-

Out of these cheques, cheque No. 656323 was dishonoured and the amount of cheques No. 656321 and 656322 was withdrawn by the petitioner, hence, the allegation that petitioner has manipulated the date of cheque is not correct. He has further stated that on the direction of learned JMFC, CSP, Lashkar has investigated the matter and found that no case is made out against the petitioner. It is further submitted that respondent No. 2/complainant has also filed civil suit before Eighth ADJ, Gwalior, which was registered as Civil Suit No. 27-A/2004 and the same is pending. It is prayed that criminal proceedings pending against the petitioner be quashed.

Learned counsel for respondent No. 2 submitted that respondent No. 2/complainant has given six cheques to the petitioner, out of which, petitioner encashed two cheques No. 977198 of Rs. 50,000/- and 977199 of Rs. 75,000/-. Thereafter, on 24.1.2002 the petitioner came to his house and submitted that in lieu of remaining four cheques, he wants cash as he has to deposit the amount in the bank immediately to release the registry. Therefore, the complainant gave the amount of remaining four cheques to the petitioner in presence of Naresh Thakur and Anil Bhalla and obtained receipt from the petitioner. When the complainant demanded back the remaining four cheques, the petitioner told that they are lost. As relations between them were good and they were business partners, hence, the complainant relied on his words. Thereafter, he came to know that one cheque issued by him to the petitioner has been bounced and the amount of cheque No. 656322 has been withdrawn by the petitioner. When the petitioner verified the cheque, it was found that it has been encashed by changing the date from 28.1.2002 to 28.7.2002. Thus, forgery has been committed by the petitioner and learned trial Court has rightly taken the cognizance against the petitioner.

In the light of submissions of learned counsel for the parties, record has been perused.

Baldev Thakur in his statement on oath has categorically stated that he has given six cheques amounting to Rs. four lacs with respect to agreement dated 24.10.2001. Thereafter, the petitioner desired that cash payment be made because time will be consumed in encashment of cheques, therefore, he gave cash of Rs. 2,75,000/- to the petitioner. Receipt was given, but the cheques were not returned to him. Later on, after changing the date of one of the cheque, amount has been encashed from his account and one cheque has been bounced. Anil Bhalla, Naresh Thakur have supported the statement of Baldev.

Sandeep Mishra, who is the Branch Manager of State Bank of India, Branch G.R.M.C., Lashkar, Gwalior, has stated that he has brought the record pertaining to account No. 011901009861 of Baldev. As per the record, payment of Rs. 75,000/- against cheque No. 656322 has been made from the account of Baldev.

From the perusal of the report submitted by CSP, Lashkar, in compliance of the order of the learned JMFC, it is reported that commission of offence under Sections 420, 467, 468, 471 and 120-B of IPC as mentioned in the complaint are not made out.

It is true that police after investigation has not found the commission of offence proved, however, from the statement of respondent/complainant Baldev Thakur made on oath before the trial Court corroborated by the statements of Anil Bhalla, Naresh Thakur and Sandeep Mishra, it appears that prima facie ingredients of offence punishable under Sections 420, 467, 468 and 471 of IPC are present.

The submission of learned counsel for the petitioner that respondent/complainant has also filed a civil suit, therefore, in the light of the law laid down by the Hon''ble Apex Court in G. Sagar Suri and Another Vs. State of U.P. and Others, State of Karnataka Vs. L. Muniswamy and Others, ; State of Haryana and others Vs. Ch. Bhajan Lal and others, , Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, and Chandrapal Singh and Others Vs. Maharaj Singh and Another, the criminal proceedings cannot be continued. However, in the facts and circumstances of the present case wherein the allegation is that the petitioner has received cash in lieu of cheque and thereafter the cheque was not returned and presented for encashment, it cannot be held that the dispute is of pure civil nature. In view of the aforesaid analysis, looking to the fact that the complaint, which is supported by the statement of complainant on oath as well as his witnesses, discloses prima facie commission of offence under Sections 420, 467, 468 and 471 of IPC, I am not inclined to exercise the inherent powers of this Court to quash the proceeding. Hence, this petition is dismissed.