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I.A. No. 3907 of 2019 has been filed in Cr. M.P. No. 704 of 2012 for early hearing of this case.
However, the counsel for the parties submit that the matter may be taken up for final disposal.
Accordingly, this Interlocutory Application No. 3907 of 2019 is hereby disposed of.
Heard Mr. K. K. Ojha, counsel appearing on behalf of the petitioner.
These two cases being Cr. M.P. No. 2360 of 2012 and Cr. M.P. No. 704 of 2012 have been filed against the order taking cognizance dated 13.09.2011. Accordingly, these two matters have been tied up together. From the perusal of the order taking cognizance dated 13.09.2011, it appears that cognizance against accused no. 1 (Uttam Kumar Rahul) has been taken u/s 138 of Negotiable Instruments Act, 1881 and u/s 420 of I.P.C. and cognizance u/s 420/34 I.P.C. has been taken against petitioners of Cr.M.P. No. 2360/2012 and Cr.M.P. No. 704 of 2012.
Counsel for the petitioners, by referring to the complaint petition, submits that on bare perusal of the complaint petition, it appears that the complainant and the accused were in good terms with each other. It has been alleged that on 27.10.2010, all the accused persons had approached the complainant and they informed the complainant that accused no. 1 is having good business of iron scrap and coal. Pursuant to that, it was agreed that the complainant would invest money in the business of the accused no. 1 and upon assurance given, the accused no. 3 Brihaspati Sharma and accused no. 4 Dilip Kumar Sharma fully convinced the complainant to make investment in the business of the accused no. 1. Ultimately, the accused no. 1 invested an amount of Rs. 15,60,000/- and it was also agreed that very soon, a partnership agreement would be made and office would be taken. The grievance of the complainant is that in spite of investment of the amount, neither any agreement was entered into nor the complainant received any profit out of the business. It is also alleged in the complaint petition that a cheque of Rs. 15.60 lakhs was issued, but the same was also dishonoured due to stop payment by the accused no. 1.
The counsel for the petitioners further submits that cognizance under Section 138 of Negotiable Instruments Act, 1881 has been taken against accused no. 1 and so far as the cognizance under Section 420/34 of the Indian Penal Code is concerned, the same has been taken against all the accused persons. The counsel submits that the accused no. 1 is not before this Court in these petitions.
Counsel for the opposite party no. 2, while opposing the prayer, submits that all the accused persons have joined together to cheat the complainant and a specific allegation has been made in para 14 of the complaint petition that there was ill-motive of all the accused persons since very beginning. By referring to this statement made in the complaint petition, the opposite party no. 2 submits that merely because there is a involvement of money and certain civil liability arises out of dispute, the same does not exclude the criminal liability of the petitioners.
After hearing the counsel for the parties and after considering the allegations which have been made in para 14 of the complaint petition, this Court finds that it has been alleged against all the accused persons regarding their ill intention since beginning and accordingly it cannot be said that ex-facie no criminal case is made out against the petitioners merely because there is also a civil liability arising out of the transactions of this case. This Court also finds that as per the order taking cognizance, there are altogether two enquiry witnesses namely, Pitambar Dhari (C.W.- 1) and Indra Narayan Shekhar Babu (C.W.- 2) . The petitioners have not filed evidence of these two enquiry witnesses for the purposes of consideration of this case.
In view of the specific allegations made in the complaint petition and in absence of the statement made by the other two enquiry witnesses, this Court is not inclined to exercise power under Section 482 of Code of Criminal Procedure to quash the entire criminal proceedings against the petitioners including order taking cognizance. Accordingly, these criminal miscellaneous petitions are hereby dismissed.
However, liberty is reserved with the petitioners to raise all the points which are available with them at appropriate stage and dismissal of these petitions will not prejudice the case of the petitioners before the learned court below.
Interim order, if any, stands vacated.
Pending interlocutory applications, if any, are dismissed as not pressed.