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2020 (7) TMI 164 - HC - Indian LawsDishonor of Cheque - Vacation of the order of cognizance of offence on behalf of the accused / defendant - It is the case of the complainant (defendant / acccused) that he made inquiry and then he could come to know that with a dishonest intention, the cheques were presented before the Bank, thus the complainant felt cheated - HELD THAT - It is an admitted case that after receipt of the notice under Section 138 N.I. Act and after a proceeding under Section 138 N.I. Act, which had been filed against the complainant, the complainant chose to file this complaint, which is the subject matter of this case. The Hon'ble Supreme Court in the case of SUNIL KUMAR VERSUS ESCORTS YAMAHA MOTORS LTD. AND ORS., 1999 (10) TMI 749 - SUPREME COURT , on amongst other, has held that a complaint and FIR after filing a complaint case under Section 138 N.I. Act, will amount to be an abuse of the process of the court. The complaint has been filed by the complainant by way of his defence to the proceeding under Section 138 N.I. Act, in which he is an accused. Further, the defence of the petitioner, which is the subject matter of the complaint, has been tested by two courts, i.e. Magistrate and the Sessions Judge and both of them rejected his version. The court below thus, has wrongly taken cognizance of offence under Sections 406/34 of the Indian Penal Code, and has issued summon to this petitioner. - application allowed.
Issues:
Petition for quashing order taking cognizance of offence under Sections 406/34 IPC based on cheques dishonored after being given as security deposit; Accusation of malafide intention in filing complaint to prevent Section 138 N.I. Act case; Allegation of criminal breach of trust and cheating by accused; Abuse of court process in filing complaint after Section 138 N.I. Act case; Judicial review of lower court's order. Analysis: 1. Petition for Quashing Order Taking Cognizance: The petitioner sought to quash the order dated 22.11.2010, by the Additional Chief Judicial Magistrate, Ranchi, which took cognizance of an offence under Sections 406/34 of the Indian Penal Code. The complaint alleged that the accused failed to return cheques given as security deposit, leading to their dishonor. The court considered the defense's argument that the complaint was filed with malafide intent to prevent a Section 138 N.I. Act case, referencing previous legal judgments. The court noted that the cheques in question were also part of a criminal case under Section 138 N.I. Act, where the complainant was convicted, indicating a pre-existing legal dispute. The court concluded that the lower court wrongly took cognizance, and the order was set aside. 2. Accusation of Malafide Intention: The defense argued that the complaint was filed with malafide intention to seek revenge and prevent the accused from filing a case under Section 138 N.I. Act. Reference was made to the Supreme Court's ruling that counter cases related to Section 138 N.I. Act should not be allowed to sustain. The defense highlighted that the complainant's defense in the complaint petition was previously disbelieved by courts in a Section 138 N.I. Act proceeding, indicating an abuse of legal process. The court considered these arguments and found the filing of the complaint to be an abuse of the court process. 3. Allegation of Criminal Breach of Trust and Cheating: The complainant alleged that the accused committed criminal breach of trust and cheated him by not returning cheques given as security deposit despite receiving cash. The defense contended that the complainant knew about the dishonor of the cheques before filing the complaint, suggesting a defensive motive behind the complaint. The court reviewed the facts and previous legal proceedings related to the cheques, ultimately concluding that the complaint was an abuse of the court process. 4. Abuse of Court Process in Filing Complaint: The court examined the sequence of events, noting that the complainant filed the complaint after receiving notice under Section 138 N.I. Act and facing legal proceedings related to the same cheques. Citing Supreme Court judgments, the court emphasized that filing a complaint after a Section 138 N.I. Act case amounts to an abuse of the court process. The court found that the complainant's actions were against legal principles and set aside the lower court's order. 5. Judicial Review of Lower Court's Order: After hearing arguments from both parties and reviewing the case file, the court concluded that the lower court wrongly took cognizance of the offence under Sections 406/34 IPC. The court found that the complainant's filing of the complaint was a misuse of the legal process and set aside the order, allowing the petitioner's application. The judgment highlighted the legal principles regarding abuse of court process and the importance of maintaining legal integrity in such matters. This detailed analysis of the judgment from the Jharkhand High Court provides insights into the legal reasoning behind quashing the order taking cognizance of the offence under Sections 406/34 IPC, emphasizing the abuse of the court process in filing the complaint.
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