Ravi Kant Prasad and Priya Ranjan Prasad vs State of Jharkhand and Another

R.R. Prasad, J.—This petition u/s 482 of the Code of Criminal Procedure has been filed on behalf of the petitioners for quashing the order dated 3.6.2000, passed by Sri M.M. Choudhary, Judicial Magistrate, 1st Class, Chas, Bokaro (presently pending in the court of Smt. Sima Sinha, Judicial Magistrate, 1st Class, Bokaro) in Complaint Case No. 95 of 2000 (T.R.No. 1123 of 2000) whereby learned court below took cognizance of the offences under Sections 420 and 323 of the Indian Penal Code and also u/s 138 of the Negotiable Instrument Act.

The fact of the case giving rise this petition is that the complainant Krishna Prasad lodged a complaint case stating therein that he had purchased 2000 shares worth Rs. 50,240/- of Unit Trust of India. Subsequently he approached one Anjani Kumar Shrivastava and Priya Ranjan Prasad Shrivastava (petitioner No. 2) who have engaged themselves for purchasing and selling shares and sold 2000 shares to them and in lieu of that, Anjani Kumar Shrivastava gave a cheques worth Rs. 30,240/- and assured to give the balance amount of Rs. 20,000/- after a fortnight. But when he deposited the cheques in his Bank, it got dishonored as the payment had been stopped. Thereafter he approached to the accused persons, who again assured to pay the amount but did not pay the same and subsequently when accused No. 1 Anjani Kumar Shrivastava was not found in the office he came to Sindri at the place of Ravi Kant Prasad, petitioner No. 1, who happens to be brother of both the accused and asked for money but the accused persons all the three refused to make payment and he was abused and pushed away from his house by all the accused persons.

Learned Counsel appearing for the petitioners submits that after lodging the complaint, statement of the complainant was recorded on solemn affirmation and the matter was taken up for enquiry and in course of enquiry u/s 202 of the Code of Criminal Procedure, witnesses were also examined and thereafter the cognizance was taken of the offences as aforesaid. Being aggrieved by that, petitioners have preferred this petition.

Learned Counsel appearing for the petitioners submits that the cognizance taken by the court u/s 138 of the Negotiable Instrument Act is quite bad as the mandatory provisions as contained in Sub-clause (b) of Section 138 of the Negotiable Instrument Act has not been complied with as admittedly no demand was put forward by the complainant within 15 days from the receipt of the information from the Bank regarding return of the cheque. He further submits that cognizance taken u/s 420 of the Indian Penal Code is also quite bad as there has been absolutely no ingredient in the complaint petition constituting offence u/s 420 of the Indian Penal Code. In this regard it was submitted that it is never the case of the complainant that he was induced in any manner by the accused persons to part with the share with a view to cheat him. Similarly, the cognizance taken u/s 323 of the Indian Penal Code is also bad as there has been no allegation constituting the offences u/s 323either in the statement of the complainant made on solemn affirmation or in the statement of the witnesses. Therefore, cognizance taken against these two petitioners of the offences as aforesaid is quite bad. Learned Counsel submits that one of the accused, namely, Anjani Kumar Shrivastava challenged the order taking cognizance before this Court, vide Cr.Misc.No. 722 of 2002 and in this Court after taking into consideration the submission as has been advanced hereinbefore quashed the order taking cognizance of the offence and the case of the said Anjani Kumar Shrivastava is similar to that of these petitioners and hence this petition also deserves to be allowed.

Learned Counsel appearing for the opposite party No. 2 submits that the case of Anjani Kumar Shrivastava is different than the case of these petitioners but the counsel failed to demonstrate that the case of these petitioners is different than that of Anjani Kumar Shrivastava, rather entire allegation seems to be same and similar.

Taking into consideration that the mandatory provisions as contained in Sub-clause (b) of Section 138 of the Negotiable Instrument Act has not been complied with and also that there has been no averment in the complaint petition that the petitioners made the complainant to part with the share with dishonest intention, and that as there has been no material for constituting the offence u/s 323, said offence is also not made out, this Court in a case of Anjani Kumar Shrivastava v. State of Jharkhand Cr.Misc.No. 722 of 2002 did hold that no offence is made out either u/s 420 and 323 of the Indian Penal Code or u/s 138 of the Negotiable Instrument Act. I on giving anxious consideration of the facts and circumstances of the case also do subscribe the view that no offence is made out either u/s 420, 323 of the Indian Penal Code or u/s 138 of the Negotiable Instrument Act.

Accordingly, the impugned order dated 3.6.2000 passed by Judicial Magistrate, 1st class, Chas, Bokaro in Complaint Case No. 95 of 2000 (T.R.No. 1123 of 2000) presently pending in the court of Smt. Sima Sinha, whereby cognizance has been taken under Sections 323 and 420 of the Indian Penal Code and also u/s 138 of the Negotiable Instrument Act against the petitioners is hereby quashed. Consequently this application is allowed.