Tilak Raj Bakshi vs Prem Chand

M.M. Punchhi, J

This petition under section 482 of the Code of Criminal Procedure discloses how dangerous it was for Courts below to go on first impressions as to whether, on the facts and circumstances of the case, there was no ground to proceed with the prosecution of the accused respondent for an offence under section 420, Indian Penal Code. Broad facts giving rise to this petition are thus :

The complainant has a timber business. The respondent, seemingly, a Contractor by profession, purchased timber goods from the complainant on 25.8.1979 worth Rs. 5360.62 on credit bill No. 145 of the said date he paid a cheque bearing No. 886064 post dated 1091979 for said sum drawn on the Hindustan Commercial Bank Limited, Ambala Cantt. The complainant accepted the cheque in good faith. but when presented on 1191979, the Bank authorities refused to honour it saying that the account had been closed. According to the Bank, the account had been closed some months prior to 25.8.1979.1n this manner being cheated of the good supplied to the accusedrespondent. the complainant filed a complaint in the Court of the Judicial Magistrate Ist Class Ambala Preliminary evidence was recorded and accused respondent was summoned Evidence was recorded in the presence of the accused as well at the precharge stage. Shri R.C. Godara, the learned trial Magistrate, vide order dated 2851983. discharged the accused taking the view that it could not be said that the accused had issued a postdated cheque knowing fully that he had no account in the Bank and thus the important ingredient of intention and knowledge of offence under section 420, Indian Penal Code, mas missing. The complainant took the matter in revision before the Court of Session, Ambala The order was left uninterfered with by Sh. R P. Bhasin, Additional Sessions Judge, Ambala on 27.2.1984. Hence the present petition

At the out set, the learned counsel for the respondent raises a preliminary objection that this court cannot in exercise of powers under Section 482, Code of Criminal Procedure, interfere in the orders of the Courts below merely because a wrong view of the matter has been taken. Rather it is asserted that a right view of the matter has been taken. I am not impressed by this argument This Court can always interfere whenever it appears to it that any order or proceeding of a criminal Court, subordinate to its jurisdiction, tends to be an abuse of the process of the Court or otherwise an order should be passed by this Court in the interest of justice. Now here, it is apparent that illustration (d) to section 415, Indian Penal Code, was not present in the mind of Courts below. This is to the following effect :

"A by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A clicats."

Now here, the evidence led by the complainant shows that the accusedrespondent took delivery of property from him and tendered payment at that time in the form of a cheque payable on the Hindustan Commercial Bank Limited, Ambala, Cantt. It is at that time to be seen whether he had kept any money in the Bank on which he issued the cheque. The statement of P.W. 2 Daya Shankar, the Accountant of the Hindustan Commercial Bank. Limited, Ambala Cantt, discloses that the Bank account was closed on 25.5.1979, i. e. 31/2 months earlier to the issuance of the cheque It was a Current Account and when the debit balance had been struck, the account was closed. In these circumstances, when no money was kept by the accusedrespondent with the Bank, it is idle to contend that he expected that the cheque issued by him would not be dishonoured. In these circumstances, the statutory illustration (d) to section 415, Indian Penal Code, visualizes that this is intentional deception whereby there is dishonest inducement to the other to deliver the article with the intention that its price would not be paid. That act accordingly amounts to cheating In this situation, the act of the accusedrespondent could be said to be dishonest and come within the meaning of the word `dishonestly'' as defined in section 24, Indian Penal Code, when the intention was to cause wrongful gain to one person or wrongful loss to another. Section 23, Indian Penal Code, which deals with the expressions `wrongful gain'' and `wrongful loss'', further elucidates the point. Thus, in any event, there was sufficient evidence On the record for the Court to proceed further in the case and continue with the enquiry and not to discharge the accused.

The learned Additional Sessions Judge too in exercise of powers under section 397, Code of Criminal procedure should have culled out principle and ordered farther enquiry. In this view of the matter a case has been made for interference as to leave it in this state would be denial of justice to complainant. Accordingly, this petition is allowed, the impugned quashed.

A direction is issued to the learned Magistrate to hold further enquiry into the matter and proceed to decide the case in accordance with law.

The parties through their are directed to put in appearance before the learned Magistrate on 4th of September, 1984.