Mahindra and Mahindra Financial Services Ltd. and Another vs Rajiv Dubey

A.S. Naidu, J.—The order dated 18th April, 2001 passed by the SDJM, Bhubaneswar in ICC No. 210 of 2000 taking cognizance of offences under Sections 406 and 420 IPC is assailed by the accused-Petitioners.

The aforesaid complaint case was filed by the opposite party as the complainant, inter alia, alleging that in the capacity of Managing Director of Team Finance Company Pvt. Ltd., Janpath Towers, Bhubaneswar he had availed hire purchase finance from Mahindra & Mahindra Financial Services Limited, accused-Petitioner No. 1, with the consent and knowledge of its Managing Director, accused-Petitioner No. 2, in respect of a vehicle for a sum of Rs. 1,89,000.00. He had given seven blank cheques drawn on Canara Bank, Main Branch, Bhubaneswar in favour of accused-Petitioner No. 1 in the year 1994 when the agreement had been executed between the parties with mutual understanding that the said cheques would not be presented for encashment by the accused-Petitioners, but then payments would be made through demand drafts regularly till the entire amount was repaid. According to the complainant, in consonance with the said understanding the entire dues were repaid by him through demand drafts and after repayment he wrote a letter to accused-Petitioner No. 1 for returning the blank cheques to him. However, without doing so, the accused-Petitioners mischievously and with ulterior motive presented the cheques in bank which fact he learnt after receiving communication from the concerned Bank that as sufficient money was not available in his account the cheques had been returned. According to the complainant, presenting the cheques in bank by the accused-Petitioners even though their entire amount had been repaid by the complainant was with a motive to cheat and harass the complainant and makes out offences under Sections 306 and 420 IPC. The Court below after recording the initial statement of the complainant u/s 200 Code of Criminal Procedure, perusing the materials produced before him and being prima facie satisfied about commission of the aforesaid offences took cognizance thereof.

The aforesaid order of the Court below is impugned mainly on the ground that the allegations made in the complaint petition being blatant falsehood, the Court below ought not to have taken cognizance of the alleged offences. Mr. B.B. Ratho, learned Senior Advocate appearing for the Petitioners, took this Court through the materials available on record and submitted that none of the ingredients of offences under Sections 406 and 420 IPC are satisfied in the present case. Relying on a catena of decisions, he submitted that taking cognizance of an offence cannot be an automatic process specially in view of the fact that neither in the complaint petition nor in the initial statement any specific role has been attributed to accused-Petitioner No. 2. He further stated that even details of the demand drafts were not given in the complaint petition and, as such, the ingredients of the offences alleged are not satisfied, and at the other hand no offence is at all made out.

Mr. Bijon Ray, learned Counsel for the complainant-opposite party, strenuously repudiated the submissions made by Mr. Ratho and submitted that invoking inherent jurisdiction, this Court should not interfere with the investigation or the proceeding of the complaint case. According to him, the veracity of the allegations cannot be appreciated and/or adjudicated in a proceeding u/s 482 Code of Criminal Procedure, inasmuch as while exercising jurisdiction under the said Section, this Court cannot enter into debatable area to decide which of the versions is true.

Admittedly the Court below recorded the initial statement of the complainant u/s 200 Code of Criminal Procedure, perused the materials produced before it and being prima facie satisfied about commission of the alleged offences under Sections 406 and 420 IPC has taken cognizance thereof. The legal proposition with regard to interfere by this Court u/s 482 Code of Criminal Procedure with an order of the Court below taking cognizance of an offence is absolutely clear and well settled by judicial pronouncement.

In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, the Supreme Court has catalogued the power of this Court and has observed that such power should be exercised sparingly and that too in the rarest of rare cases, such as:

(1) Where the allegations made in the First Information Report or the complaint, even if they are take at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not either disclose the commission of any offence or make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, of which no produce person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party and

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

I have heard learned Counsel for the parties at length. Learned Counsel for both sides cited a good number of decisions, but then as there is no quarrel with regard to the settled position of law, I refrain myself from referring to the same. It is apt to state here that before a Magistrate takes cognizance u/s 190 Code of Criminal Procedure, not only he must apply his mind to the contents of the petition, but must have done so for the purpose of proceeding u/s 200 and 202 Code of Criminal Procedure. Taking cognizance ordinarily means that the Magistrate concerned has come to the conclusion that there is a case to be inquired into. It has been held by the Supreme Court in the case of Ajit Kumar Palit v. State of West Bengal, reported in (1963) Supp.1 SCR 953, that the word ''cognizance'' has no esoteric or mystic significance in criminal law or procedure. It merely means ''become aware of'' and when used with reference to a Court or Judge, ''to take notice of''. In the case at hand, as would be evident from the materials on record and the arguments advanced by both sides, disputes between the parties inter se do exist. Presenting cheques at the Bank by the accused-Petitioners is an admitted fact. The intention of handing over the cheques by the complainant to the accused-Petitioners and as to whether there was any cause of action for the latter to present the said cheques at the Bank are disputed questions of fact which cannot be gone into at this stage. According to the Petitioners there were valid reasons for presenting the cheques at the Bank in consonance with the mutual understanding. This contention is stoutly denied by the complainant. According to the complainant, presentation of the cheques at the Bank was a mischievous act aimed at harassing him. Thus the competent Court has to decide the inter se disputes among the parties. By the impugned order, the SDJM, after going through the allegations made in the complaint petition, perusing the materials annexed to the said petition, recording the initial statement of the complainant u/s 200 Code of Criminal Procedure, prima facie arrived at the conclusion that cognizable offences under Sections 406 and 420 IPC were made out. Law is well settled that while taking cognizance the Court is not required to consider the defence plea which may be available to be raised by the later at the relevant stage during trial.

After going through the impugned order, I do not find any infirmity or illegality therein. The said order is just, proper and in consonance with law. I am, therefore, not inclined to interfere with the same at the very threshold. Accordingly, I dispose of this CRMC granting liberty to the Petitioners to raise all their submissions before the Court below at the time of framing of charge or at any other relevant time as may be advised.

As the complaint case is pending since 2000, I direct the Court below to dispose of the same without further delay and not to insist upon personal appearance of the accused-Petitioners in Court unless the same is very much necessary for adjudication of the case.

The interim order passed by this Court is vacated.