Lalan Prasad vs State of Jharkhand and Others

Vikramaditya Prasad, J.—Opposite party No. 2 has appeared through Mr. M.K. Dey, learned Counsel by filing Vakalatnama. Opposite party Nos. 3 and 4 have not made their appearance as yet. This case has appeared for the first time and the opposite party No. 2 has appeared suo motu without service of notice.

The question arose whether opposite parly Nos. 3 and 4 who are the sons of the complainant could be noticed. This was objected to by the learned Counsel appearing on behalf of the complainant/opposite party No. 2 on the ground that as these persons arc witnesses in the case, which is apparent from the complaint petition Annexure-1 itself. Their status being that of witnesses having nothing to do with this quashing proceeding cannot be noticed.

To the contrary the learned Counsel for the petitioner submitted by referring to paragraph 15 of page 6 of the complaint petition (Annexure 1) that in pursuance of the decision of the arbitration the accused Lalan Prasad had to pay Rs. 35,00,000/- (Rupees thirty- five lacs only) for the transfer of the shares of the complainant, her husband and sons of the complainant and then the complainant and her sons transferred their shares in the Company M/s. Super Steel Casting Ltd. To the accused Lalan Prasad, but the accused paid only Rs. 13,50,000/- (Rupees thirteen lacs fifty thousand only) and assured to pay the rest later on, but he became dishonest and has not paid the rest amount of Rs. 21,50,000/-(Rupees twenty-one lacs fifty thousand only) up till now in spite of several requests and (hereby he committed offence argued that from this averment made in the complaint petition it is evident that not only the complainant hut also her husband and sons were actually informed about the real transaction led between them and, therefore, according to him their status is as that of the complainant but as the husband is no more now, the sons are necessary parties in this quashing proceeding,

The petitioner has levelled a serious allegation by filing a supplementary affidavit dated 30.7.2003 that page 6 of the original complaint petition has been substituted by another page adding some more allegations, which is evident from the certified copy and photostat copy of two complaint petitions filed along with the supplementary affidavit dated 30.7.2003 in which certified copy of the original complaint petition has been Annexed as Annexure 5 and Xerox copy of the certified copy of the changed and manipulated complaint petition has been annexed as Annexure 5/A. It is also informed by the learned Counsel for the petitioner that a petition in this regard is pending before the concerned Court but no order is being passed.

At present I am not making comment on this.

Then the stay of the operation of the order taking cognizance is taken up. The learned Counsel for the petitioner argued that originally in the complaint petition it was stated that the post dated cheque will be given in pursuance of some arbitration award in lieu of the release of certain document and, therefore, according to him, it was not intended to he presented and to be encashed whereas the learned Counsel for the opposite party No. 2 argues that u/s 138 of the N.I. Act presumption will be that it has been handed over to the holder of the cheque and it can be encashed. The learned Counsel for the opposite party No. 2 relying on a decision reported in AIR 2002 SC 182 argued that so far Section 138 of the N.I. Act is concerned, the rebuttal can be made by the accused. The Apex Court held that on this ground alone that burden can be discharged by the accused; the proceeding cannot be quashed. Here I am concerned only with the stay of the operation of the order taking cognizance. If in the circumstance, discussed above, the operation of the impugned order is not stayed till the final order is this Cr. M.P., then the Cr. M.P. becomes infructuous and secondly that order of the Apex Court says that this presumption can be rebutted by the accused at the time of trial. At this stage the decision referred to above is not required to be considered.

In the aforesaid circumstance till the further order is passed, the operation of the impugned order dated 28.3.2003 passed in Complaint Case No. 60 of 2003 by the Sub-Divisional Judicial Magistrate, Koderma shall remain stayed.

Now at this stage, Mr. M.K. Dey the learned Counsel, who appears on behalf of the opposite party No. 2, undertakes to appear and file Vakalatnama on behalf of opposite party Nos. 3 and 4 within one week.

He may appear and file Vakalatnama on their behalf.

Put up this case for admission on the second day of the filing of the Vakalatnama on behalf of opposite party Nos. 3 and 4. Order accordingly.