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Judgment
D.G.R. Patnaik, J.—The petitioners in this application have prayed for quashing the entire proceeding which has been initiated against them on the basis of the F.I.R. lodged at the Jorapokhar Police Station bearing G.R. No. 3296 of 2004 arising out of Jorapokhar P.S. Case No. 233 of 2004 dated 15.10.2004, for the offences under Sections 420/34 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act.
Heard Counsel for the petitioners and Counsel for the State.
Though as per the office report, notice upon Opposite Party No. 2 was validly served, but he has not appeared either in person or through lawyer.
The facts of the case which was instituted by the informant/Opposite Party No. 2 against the petitioners are that the complainant being a builder and partner of M/s. Shivam Builders and Real Estate Developers, Dhanbad, had entered into an agreement with the accused Aryamishra Prabhakar Deo and Sanatan Chatterjee under which the aforesaid accused persons had agreed to allow the complainant to develop their land at an estimated cost of Rs. 6,00,000/-. In terms of the agreement, the complainant paid a total sum of Rs. 6,00,000/- on different dates by cheques which were received by the accused Aryamishra Prabhakar Deo. However, since a portion of land covers an area belonging to M/s. B.C.C.L., no objection from M/s. B.C.C.L. could not be obtained from the B.C.C.L. and consequently the construction work initiated by the complainant was stopped by the C.I.S.F. at the instance of M/s. B.C.C.L. Upon such obstructions, the complainant contacted the land owners and the land owners had agreed to return the money to the complainant. The accused Sanatan Chatterjee had agreed that he would return the money to the complainant and to this the complainant having consented, the said Sanatan Chatterjee had issued a cheque for a sum of Rs. 3 lakhs on 30.08.2004 in favour of the complainant drawn on UCO Bank, Hirapur Branch, Dhanbad. However, upon presentation, the cheque was not honoured on the ground of insufficient fund. Being aggrieved, the complainant had filed the FIR against the land owners including Aryamishra Prabhakar Deo and his mother and other accused persons, all of whom belong to the same family, alleging that they, in collusion with the said Sanatan Chatterjee, had cheated him.
Learned Counsel for the petitioners submits that even on going through the entire allegations in the FIR, no offence either u/s 420 of the Indian Penal Code or u/s 138 of the Negotiable Instruments Act, is made out against any of the present petitioners. Learned Counsel submits that admittedly the cheque, which is alleged to have been dishonoured, was not issued by any of the present petitioners nor did the petitioners express any such liability in respect of the disputed cheque. As regards the initial agreement which was entered into with the complainant, the same could not be acted upon in view of the fact that no objection could not be obtained from M/s. B.C.C.L. and the complainant, having reconciled to this fact, had agreed to take back all the money from the intermediary namely Sanatan Chatterjee and had even accepted the cheque given by Sanatan Chatterjee. There is as such, no averment of any deceit alleged against the present petitioners in the FIR.
Learned Counsel submits that considering the fact that the entire allegations, as appearing in the FIR, do not make out any case even prima facie for any of the offences mentioned above, the continuation of the criminal proceeding against the petitioners is an abuse of the process of court.
Learned Counsel for the State, on the other hand, submits that on the basis of an earlier agreement, the petitioners had obtained money from the complainant which they were bound to return when the agreement could not be acted upon but, the petitioners did not return that amount and therefore the elements of deceiving and of dishonest intentions are apparent from their conduct.
I have heard Counsel for the petitioners and have gone through the contents of the FIR. As narrated above, the complainant''s grievance appears to be based on the agreement which he had entered into with the land owners for developing their land. Even as admitted in the FIR, the complainant had reconciled with the fact that on account of the objections raised by M/s. B.C.C.L., the land could not possibly be made available to him even by the land owners for development and therefore, he had agreed to take back the amount from the land owners and had also agreed to the proposal of the accused Sanatan Chatterjee who had undertaken to pay the amount to the complainant. It is obvious from the above facts that there is no such allegation in the FIR which could suggest that the petitioners were prompted by any dishonest intention or that they were impelled by deceitful motives when they had entered the agreement with the complainant. The fact that the cheque was not drawn by any of the present petitioners is admitted in the FIR.
Considering the above facts, since the entire allegations do not invite the ingredients of either Section 420 of the Indian Penal Code or Section 138 of the Negotiable Instruments Act against the present petitioners, the order of cognizance against the petitioners and continuation of criminal proceeding against them, would certainly be an abuse of the process of court and cannot therefore be allowed.
In the light of the discussions made above and from the facts and circumstances of the case, I find merit in this application. Accordingly, this application is allowed. The entire proceeding pending against the present petitioners in the court of Sri S.K. Singh, Judicial Magistrate, Dhanbad or his successor vide G.R. No. 3296 of 2004 arising out of Jorapokhar P.S. Case No. 233 of 2004, is hereby quashed.