Rakesh Chowhan vs State Of Chhattisgarh

This Petition has been filed under Section 482 Cr.P.C for quashing the orders dated 15.01.2021 and 27.01.2021 whereby charges for the offence under Section 420 IPC were framed against the Petitioner in Criminal Case No.669/2020 by the JMFC, Mahasamund.

Brief facts of the case are that on 08.11.2019, Respondent No.2-Kushal Ram Dhruv, Secretary of Krishi Upaj Mandi, Baghbahara had lodged a written complaint dated 14.10.2019 alleging that the Petitioner, after purchasing paddy from 19 farmers to the tune of Rs.61,88,650/-, given them a cheque, which was dishonoured and thereby cheated the farmers and based on such allegations, offence under Section 420 IPC was registered against him at P.S Baghbahara vide FIR No.251/2019 on 08.11.2019.

Shri Lohani, learned Counsel for the Petitioner does not press IA No.01/2021, an application filed under Section 437-6 Cr.P.C as no relief has been claimed in the prayer clause, therefore, he seeks to withdraw the same as he has not made the said prayer before the trial Court and directly made the same in this Petition, which is accordingly dismissed as not pressed with liberty to prefer the same before the Court below. He submits that as the ingredients alleged in the complaint attract offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’) and no offence of cheating is made out against him, therefore, continuation of the criminal proceedings for the offence under Section 420 IPC amounts to abuse of process of law. He placed reliance on the judgment rendered in the matter of Jayaswami and Another vs. State of Orissa & Another decided on 23.02.2005 in Criminal Miscellaneous Case No.2195/2004 wherein, after referring to G. Sagar Suri and Another vs. State of U.P and Others reported (2000) 2 SCC 636, it was held that unless specific instances of cheating is pleaded, issue of bounced cheque would not attract the provisions of Section 420 IPC and would be confined to Section 138 of the NI Act. He further submits that most of the farmers have already entered into compromise with the Petitioner and they were also paid for the same and the Petitioner may file an application for compounding the said offence in accordance with law before the trial Court for the victims who have entered into compromise. Learned Counsel further submits that four of the farmers have also filed an application under Section 138 of the NI Act. He lastly relied upon the judgment rendered in the matter of Vijay Kumar Ghai and Others vs. State of west Bengal and Others reported in (2022) 7 SCC 124.

Per contra, learned Counsel for the Respondents have opposed the prayer.

In the matter of Sangeetaben Mahendrabhai Patel vs. State of Gujarat and Another reported in (2012) 7 Supreme Court Cases 621, the scope of lodging a complaint or registering the offence under Section 420 IPC as also after adjudication of criminal case under Section 138 of the Negotiable Instruments Act on the ground of double jeopardy was examined. Section 300 (1) of Cr.P.C stipulates that Person once convicted or acquitted not to be tried for same offence and the relevant para i.e. para-35 is as under for ready reference:-

“35. Learned counsel for the appellant has further placed reliance on the judgment in G. Sagar Suri & Anr. v. State of U.P. & Ors., (2000) 2 SCC 636, wherein during the pendency of the proceedings under Section 138 N.I. Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/ 420 IPC, observing that it would amount to abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been raised nor decided. Therefore, the ratio of that judgment does not have application on the facts of this case.”

It was materially observed further in paras-37 and 38 as under:-

“37. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 NI Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 NI Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed.

In the case under NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under NI Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under NI Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.”

Reverting back to the facts of the present case, in view of the aforesaid principles, it has been categorically complained against the Petitioner that after obtaining paddy from 19 farmers, he had given a cheque, though at the time of issuance of the cheque, he was well aware that he was not having funds in his Account, therefore, from the very inception, the Petitioner was intending to cheat the farmers and not paid them within a reasonable period and thereby cheated them, therefore, necessary ingredients for the offence under Section 420 IPC are available in the present case for which, the Investigating Officer has rightly filed the charge sheet and the trial Court has also framed the charge accordingly. The case law cited by Shri Lohani i.e. Vijay Kumar Ghai and Others vs. State of west Bengal and Others (supra) is distinguishable from that of the facts of the present case and is of no help to him as in the present case, elements of cheating are available.

According to Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, quashing of a complaint/FIR should be an exception rather than an ordinary rule, therefore, considering the facts of the present case, no case is made out for quashing of the FIR.

In view of above, the Petition is bereft of any merits and is accordingly dismissed.

A copy of this order be sent to the concerned Court for necessary compliance.