M/S Indseam
Services Ltd. Vs. Bimal Kumar Kejriwal (HUF) [2001] Insc 488 (14 September
2001)
D.P.Mohapatra
& K.G.Balakrishnan D.P. Mohapatra,J.
Leave
granted.
M/s Indseam
Services Limited, an accused in complaint case No.C.1628/96 pending before the
Metropolitan Magistrate, 12th Court, Calcutta, has filed this appeal assailing
the order dated 10.07.2000 of the Calcutta High Court dismissing the Revision
Petition filed by it for quashing the order of the magistrate taking cognizance
of the offence under Section 420, Indian Penal Code, and issuing process to the
accused.
The
complaint case was registered on receipt of the complaint filed by one Krishan
Kumar Kejriwal, authorised representative of Bimal Kumar Kejriwal, who is the
respondent herein, alleging, inter alia, that three cheques drawn by the
officers of the appellant-company in favour of the respondent were returned by
the bank on instructions received from the drawer not to encash them.
The
complainant contended that on the facts averred in the complaint petition the
accused have committed the offences under Section 138/141 of the Negotiable
Instruments Act and Section 420 read with Section 120B of the IPC.
The
learned Magistrate on perusal of the complaint petition and statement of the
complainant and other materials produced by him, dismissed the complaint
petition under Section 203 of the Criminal Procedure Code holding that there
was no sufficient ground for proceeding against the accused, vide the order
dated 1.10.1996. Therein the learned Magistrate observed that the dispute
between the parties cropped up due to breach of contract between them and that
the dispute is of a civil nature. The complainant challenged the said order by
filing a Review Petition before the High Court. The High Court disposed of the
case by the order dated 21.3.1997 holding that the learned Magistrate was right
in not taking cognizance of the offence under Section 138/141 of the Negotiable
Instruments Act and his order in that regard cannot be interfered with; that the
learned Magistrate should have taken cognizance of the offence under Section
420 IPC. The High Court issued a direction to the learned Magistrate to hold
further enquiry into the complaint and pass appropriate order. On receipt of
the order of the High Court the learned Magistrate by the order dated 9.12.1997
took cognizance under Section 420/120B IPC and issued process to all the
accused persons. The order passed by the Magistrate is quoted hereunder:
"I
have also gone through the order of Hon'ble High Court. On careful scrutiny of
the materials on record, I find that there is sufficient ground to proceed
against the accused persons u/s 120B/420 IPC.
Issue
Summons against all the accused persons u/s 120B/420 IPC requisites are to be
put in at once." The appellant filed a revision petition in the High Court
assailing the said order. The learned Judge declined to interfere with the
cognizance order passed by the learned Magistrate for the reason that when
there was a specific direction from the High Court to take cognizance of the
offence under Section 420 IPC and the Magistrate passed the order in view of
such direction it will not be proper for the High Court to hold otherwise. The
relevant portion of the order reads as follows:
"It
appears that the learned Magistrate took cognizance of the offence under
Section 420/120B of the Indian Penal Code and issued process against the
accused persons in view of the direction given by this Court. In my considered
opinion when there is a specific direction from this Court directing the
learned Magistrate to take cognizance of the offence under Section 420 IPC, it
will not be proper for this Court to hold otherwise.
In
view of the discussions made above I think it will not be proper for this Court
to pass any further order or to go into the merit of the case in view of the
judgment delivered by Justice Tiwari. This court cannot sit on appeal over the
judgment and order passed by a co-ordinate bench of this Court. The revisional
application is accordingly dismissed.
However,
liberty is granted to the petitioner to agitate all the points, which he has
taken before this court in this revisional application, before the trial court
at the appropriate stage of the proceedings." Shri Rakesh Dwivedi, learned
senior counsel appearing for the appellant raised the contentions that on
reading the complaint petition and accepting the averments made therein as
correct, no prima facie case for the offence of cheating punishable under
Section 420 IPC is made out; that the averments made in the complaint petition
do not show that the element of deceit on the part of the accused persons was
present when the parties entered into the contract; that the transactions
between the parties and liability of the appellant thereunder, if any, are of
civil nature and criminal prosecution in such a case is a means of harassing
the accused persons and gives rise to abuse of the process of court. Shri Dwivedi
also contended that the learned magistrate passed the cognizance order without
holding any enquiry despite the specific direction of the High Court.
Per
contra, Shri D.A.Dave, learned senior counsel appearing for the respondent
contended that the ingredients of the offence of cheating punishable under
Section 420 IPC are made out on the averments in the complaint petition and
therefore the learned Magistrate was right in passing the order taking
cognizance of the offence under Section 420 IPC and the High Court rightly
dismissed the Revision Petition filed by the appellant. Shri Dave further
contended that the complainant had entered into the contract with the accused
persons and parted with substantial sum of money (rupees eighty lakhs) on the
basis of the three cheques issued by the latter in his favour which were
returned by the Bank on the instructions issued by the accused persons.
Referring to illustration (f) of Section 415 IPC Sri Dave submitted that on the
averments made in the complaint petition the ingredients of the offence are
satisfied.
On
perusal of the order under challenge it is clear that the learned single Judge
disposed of the revision petition filed by the appellant for setting aside the
cognizance order and for quashing the criminal proceeding without entering into
the merits of the case. The learned single Judge did not consider the nature of
the contract between the parties, the arrangement for payment of dues by the
accused persons to the complainant, nor did he record a finding that the
ingredients of the offence of cheating defined under Section 415 IPC were prima
facie made out from the averments in the complaint petition and the statement
on oath by the complainant before the learned Magistrate. The learned single
Judge felt bound by the observations made in the order passed on 21st March,
1997 in which another single Judge (Justice S.K.Tiwari) while accepting the
position that the Magistrate rightly did not take cognizance of the offence
under Section 138/141 Negotiable Instruments Act had observed that the learned
Magistrate should have taken cognizance of the offence punishable under Section
420 IPC. From the order under challenge it is manifest that the learned single
Judge did not pay due attention to the part of the order in which the learned
Magistrate was directed to hold further enquiry into the complaint. While judging
the question whether the cognizance order passed by the learned Magistrate was
sustainable in law it was incumbent for the learned single Judge to go into the
question whether the complainant has been able to make out a prima facie case
for the offence of cheating on the averments in the complaint petition and his
statement on oath. The matter should have been examined in the light of the
contentions raised by the accused applicant in the revision petition and
finding recorded. The learned single Judge also did not consider whether the
learned Magistrate held any further enquiry before passing the cognizance
order; whether the dispute raised in the case is of civil nature and continuing
the criminal proceeding will give rise to abuse of the process of court.
We are
constrained to observe that there has been an avoidance of the function of
judicial determination of the question of acceptability or otherwise of the
plea raised by the accused persons for setting aside the cognizance order and
for quashing the criminal proceedings merely on the ground that on the previous
occasion the single Judge had made an observation that cognizance should have
been taken under Section 420 IPC, ignoring the further direction given in that
order to the Magistrate to hold enquiry into the complaint.
For
the reasons discussed in the foregoing paragraphs, the order under challenge
being unsustainable has to be set aside and the matter is remitted to the High
Court for fresh consideration. Since we are remitting the matter to the High
Court for fresh consideration we do not deem it proper to make any observation
on the merits of the case.
Accordingly,
the appeal is allowed. The order passed on 10.7.2000 in Criminal Revision No.
1230/98 is set aside and the matter is remitted to the High Court for fresh
disposal in accordance with law.
.............................J.
(D.P.MOHAPATRA)
.............................J.
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