Mukesh Trivedi And Another vs Jitendra Gaud

Both the petitioners have preferred this petition under Section 482 of Cr.P.C. for quashing of order dated 09.12.2013 passed by Judicial Magistrate First Class, Mandsaur in Criminal Case No.3342/2006 whereby the learned Judicial Magistrate has dismissed the application to drop the proceedings of the aforesaid criminal case initiated by the respondent by filing a private complaint under Sections 138 of Negotiable Instruments Act, 1881 and 420 IPC on the ground that as name of the company was deleted by the complainant himself from the array of the accused, therefore, Directors of the Company only cannot be prosecuted under Section 138 of Negotiable Instruments Act, 1881.

Facts giving rise to the present petition are that a private complaint under Sections 138 N.I. Act and 420 IPC was filed by respondent against M/s. Rajasthan Ploymers Tubes Limited and its Director Mukesh Trivedi and Safudin Lohari (present petitioners) alleging that both the petitioners have taken Rs.2,00,000/- from him in the name of Company and issued a cheque bearing No.628736 of account No.794 of the petitioners maintained with State Bank of Bikaner and Jaipur, Branch Pratapgarh, Rajasthan for repayment of the money borrowed by them, which was dishonoured by the Bank. The complainant/respondent came to know that the petitioners, with intent to cheat him, have issued cheque of a closed account, therefore, after serving statutory notice, he filed private complaint against them including the company in whose name the money was taken by the petitioners. Later on, at the instance of the complainant, the name of the company was deleted from the array of the accused persons. Pursuant to this, the petitioners moved an application before the Judicial Magistrate that as the Company is no more an accused, therefore, the Directors of the Company alone cannot be prosecuted. They placed reliance on Anita Hada Vs. Godfather Travels and Tours Private Limited reported in (2012) 5 SCC 661. Their application was dismissed by the learned Judicial Magistrate vide impugned order observing that the complaint was not only filed under Section 138 of Negotiable Instruments Act, 1881 but was also filed under Section 420 IPC, therefore, they cannot be discharged or acquitted.

The order of the Magistrate is challenged by the petitioners through this petition mainly on the basis of law laid down by the Hon'ble Apex Court in the case of Anita Hada (supra).

The contention of the learned Counsel for the petitioners is that the complaint was only filed under Section 138 N.I. Act, along with the complaint an affidavit was filed by the complainant, there also he claimed that the complaint is filed under Section 138 N.I. Act, cognizance was also taken for the same offence. From the pleadings of the complaint also it is evident that the complaint was filed under Section 138 of Negotiable Instruments Act, 1881 and not under any other Act, therefore, the Trial Court has committed error in assuming that the complaint was also filed under Section 420 IPC.

It is further argued that Negotiable Instruments Act is a special statute, therefore, its provision and the procedure prescribed in the Special Act will prevail over the provisions of the General Law. Neither the complaint was filed under Section 420 IPC nor there is any such pleading. Section 420 is inserted in the complaint by hand without seeking permission of the Court. On the basis of mere mention of this Section, the complaint cannot be treated as one under Section 420 IPC. Law laid down by the Supreme Court is clear, therefore, the Trial Court has grossly erred in dismissing the application of the petitioners for dropping the complaint.

Reliance is placed on an order of this Court dated 18.09.2017 passed in M.Cr.C. No.6777 of 2014 (Mukesh Trivedi and another Vs. Surajmal) and M.Cr.C. No.7534 of 2014 (Mukesh Trivedi Vs. Jagdish through Madanlal) and it is argued that in similar type of complaint this Court has allowed the petition and quashed the proceedings against them. It is prayed that the similar order be passed in the present petition also.

In both these petitions i.e. M.Cr.C. Nos.6777 of 2014 and 7534 of 2014, this Court has quashed the proceedings of private complaint case Nos.3341 of 2006 and 3343 of 2006 observing that the complaints cannot be prosecuted against the petitioners therein without the company being accused. While passing the orders in M.Cr.C. Nos.6777 of 2014 and 7534 of 2014, this Court has placed reliance on the earlier judgment of this Court rendered in Mukund Das Maheshwari Vs. State of M.P. M.Cr.C. No.10644/2006 (Principal Seat at Jabalpur) dated 30.03.2017 and decision rendered by the Hon'ble Apex Court in the case of Sharad Kumar Sanghi Vs. Sangita Rane reported in (2015) 12 SCC 781 along with the judgment rendered in Anita Hada's case (supra).

I have gone through the complaint filed by the respondent before the Judicial Magistrate First Class. In the title of the complaint it is written that "Complaint under Section 138 N.I. Act and 420 IPC". In para 4 of the complaint it is mentioned that petitioners have taken this money to cheat the complainant. In para 6 of the complaint it is mentioned that on the cheque issued by the petitioners the year "2003" was printed on the cheque but by interpolation this digit "3" was made "4" by petitioner Mukesh Trivedi with consent of the petitioner-Safudin Lohari. He also initialed this interpolation made on the cheque. It is further mentioned that on presentation of the cheque, the bank informed that the account has already been closed by the holder. The petitioners never replied to the notice of demand served on them. The allegation of the respondent/complainant was that the petitioners have taken money as they were acquainted with the complainant and that their intention was to cheat him, therefore, it cannot be said that the complaint was not filed by the complainant under Section 420 IPC or that it was filed only under Section 138 N.I. Act. The complainant and his witnesses are yet to be examined before the Trial Court, in such situation, I do not find it proper to quash the proceedings without giving the complainant an opportunity to examine himself under Section 200 or to produce witnesses under Section 202 of the Cr.P.C.

Orders passed by this Court in M.Cr.C. Nos.6777 of 2014 and 7534 of 2014 do not reveal that such situation was present in those cases like in the present case, therefore, on the basis of both those orders, the petitioners cannot find favour in the present petition. The judgment relied on by this Court while passing orders in M.Cr.C. Nos.6777 of 2014 and 7534 of 2014 passed in Sharad Kumar Sanghi' case (supra) which is the basis of dismissing the complaint filed by the complainant of both these petitions, the Court observed that the allegations were made in the complaint that the offence of cheating was committed by the company alone and when the company is not made an accused, the Directors cannot be prosecuted. But in this case, allegation is that taking advantage of their acquaintance with the complainant, both the petitioners have taken Rs.2,00,000/- from the complainant in the name of the company with intent to cheat him and they issued a cheque of account of the company, which was already closed, therefore, the order passed in M.Cr.C. Nos.6777 of 2014 and 7534 of 2014 are distinguishable and the judgment relied on in those orders rendered in Sharad Kumar Sanghi' case (supra) are distinguishable on facts. Judgment rendered in Anita Hada' case (supra) is also not applicable in this case, as the complaint is not one, which is filed only under Section 138 Negotiable Instruments Act, 1881, therefore, both the orders of this Court or the judgments referred in those orders, cannot be made basis for passing the similar order in the present case.

Consequently, the petition is dismissed.

It emanates from the different order sheets of the Trial Court filed by the petitioners that since filing of the complaint in the year 2004, the petitioners are not cooperating with the proceedings of the Court. It has been observed by the Court at several occasions that they are adopting delaying tactics on the one or the other ground, therefore, now they are directed to appear before the Trial Court on 04/11/2019 and co-operate with the proceedings of the Court. The Trial Court is further directed to proceed further with the complaint and dispose it of within six months from the date of receipt of this order. The progress of the complaint be intimated to the Principal Registrar of this Court after three months and intimation of disposal be also given to the Principal Registrar, who shall place the same before this Court for perusal.

With the aforesaid, the petition stands dismissed and disposed of.