Kamal Kumar Ahuja vs State Of Jharkhand And Ors

The lawyers have no objection with regard to the proceeding, which has been held through video conferencing today at 10.30 A.M. They have no complaint in respect to the audio and video clarity and quality.

Heard learned counsel for the petitioners, learned A.P.P. for the State and learned counsel for O.P. No. 2.

In this application, the petitioner prays for quashing the order dated 22.11.2010, passed by the Additional Chief Judicial Magistrate, Ranchi in connection with Complaint Case No. 1914 of 2010, by which the court below had taken cognizance of offence punishable under Sections 406/34 of the Indian Penal Code and, thereafter, issued summon against the petitioner.

The facts lie in a very narrow compass. The complainant, in the complaint petition, has stated that he has some business deal with the Company of the accused. He stated that for one of the said deals two cheques bearing nos. 083216 and 555710 amounting to Rs. 17 lakhs and 3 lakhs respectively, were handed over to the petitioner. It is further stated that thereafter, cash was arranged and the same was paid in lieu of the said cheques to the petitioner and final money receipt was also granted and an undertaking was given by the petitioner that he will return the cheques, which were given to him by way of security deposit. It has been further mentioned in Para-8 that a notice was served upon the complainant, then only he came to know that the aforesaid two cheques, which were given to the petitioner as security deposit, which were supposed to be returned to the complainant, were presented before the Bank and the same got dishonored. It is the case of the complainant that he made inquiry and then he could come to know that with a dishonest intention, the cheques were presented before the Bank, thus the complainant felt cheated. On this background, the complaint petition was filed. The Court, thereafter, recorded the statement of the inquiry witnesses under Section 202 Cr.P.C. After perusing the Solemn Affirmation of the complainant and statements recorded under Section 202 Cr.P.C., the court took cognizance of offence punishable under Sections 406/34 IPC by order dated 22.11.2010.

Aggrieved by the aforesaid order, the petitioner (accused) has filed this criminal miscellaneous petition.

Learned counsel appearing for the petitioner submits that this complaint has been filed with a malafide intention to take revenge. He submits that the complaint was filed to prevent the petitioner to file any case under Section 138 of N.I. Act. In support of his statement, he submits that Para-8 of the complaint petition clearly suggests that the complainant knew that his cheques got dishonored and, thereafter, to save his skin and to create his defence, he has filed this complaint case. He further submits that the Hon'ble Supreme Court in the case of "Eicher Tractor Ltd. & Ors.- versus- Harihar Singh & Another, reported in (2008) 16 SCC 763" has held that a counter case in respect of a cheque, which is a subject matter of 138 N.I. Act, cannot be allowed to sustain. Mr. Nilesh Kumar further submits that in a proceeding under Section 138 N.I. Act, the complainant of this case was convicted and his appeal was also dismissed. Thus, the defence of the complainant, which he has taken by way of filing this complaint petition, was tested by both the courts below in a proceeding under Section 138 N.I. Act and both the courts disbelieved the same, thus this instant order taking cognizance should be quashed.

Mr. Rajesh Kumar, learned counsel for O.P. No. 2 submits that admittedly, there was a business relationship between the parties. Two cheques were given to the accused persons, but they did not return the same even after receipt of money in cash. Thus, they have committed criminal breach of trust and have cheated the complainant.

I have heard learned counsel for the parties and have gone through the entire file. I am not repeating the fact of this case, which has been mentioned in the complaint petition as the same has been narrated in brief hereinabove. The fact, which I would like to mention and record, is the statement in Para-8 of the complaint petition. Para-8 of the complaint clearly suggests that the cheques, issued by the complainant, got dishonored and the complainant came to know about the same from the legal notice issued to him. This fact clearly suggests that the cheques were dishonored and the complainant knew about the same before filing this complaint petition. Only after the cheques got dishonored, the complainant filed this complaint case. This complaint was filed on 09.11.2010. The cheques, which are the subject matter, are numbered as 083216 & 555710. These cheques were also the subject matter of criminal case, which was numbered as C/1 Case No. 448 of 2010, which was filed on 25.02.2010, under Section 138 N.I. Act. What the complainant narrated in the entire complaint petition, is nothing but his defence to the case, filed against him under Section 138 N.I. Act, referred to above. The court of Judicial Magistrate, 1st Class, Jamshedpur by a detailed judgment, considered the case of the complainant, (who was the accused therein), and has ultimately, convicted him vide judgment dated 30.07.2012. The appeal against the said judgment bearing Cr. Appeal No 218 of 2012, filed by the complainant of this case, was also dismissed by the Appellate Court vide judgment dated 20.01.2018. This clearly goes to show that the defence of O.P. No. 2, by way of filing a complaint, which is the subject matter of this case, has been looked into by two competent courts and was not found to be tenable in the eyes of law.

Further, I find that it is an admitted case that after receipt of the notice under Section 138 N.I. Act and after a proceeding under Section 138 N.I. Act, which had been filed against the complainant, the complainant chose to file this complaint, which is the subject matter of this case. The Hon'ble Supreme Court in the case of "Sunil Kumar- versus- Escorts Yamaha Motors Ltd. & Others, reported in (1999) 8 SCC 468", on amongst other, has held that a complaint and FIR after filing a complaint case under Section 138 N.I. Act, will amount to be an abuse of the process of the court. Similarly, the Hon'ble Supreme Court in the case of "Eicher Tractor Ltd." (supra) more or less on identical facts has also held that initiation of a proceeding under the IPC by the accused of a proceeding under Section 138 N.I. Act, after institution of a proceeding under Section 138 N.I. Act, involving the same cheques, is an abuse of the process of the Court.

Considering the judgment of Hon'ble Supreme Court, and the facts of this case I find that the complaint has been filed by the complainant by way of his defence to the proceeding under Section 138 N.I. Act, in which he is an accused. Further, the defence of the petitioner, which is the subject matter of the complaint, has been tested by two courts, i.e. Magistrate and the Sessions Judge and both of them rejected his version.

Thus, I find that the filing of Complaint Case No. 1914/2010 is nothing but a sheer abuse of the process of this Court. The court below thus, has wrongly taken cognizance of offence under Sections 406/34 of the Indian Penal Code, and has issued summon to this petitioner. Thus, this application is allowed. The order dated 22.11.2010, passed by the Additional Chief Judicial Magistrate, Ranchi in connection with Complaint Case No. 1914 of 2010, taking cognizance of offence punishable under Sections 406/34 of the Indian Penal Code and the summoning order is hereby set aside.

Thus, this application stands allowed.