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2024 (2) TMI 1010 - HC - Indian LawsDishonour of Cheque - applicability of principles of discharge - amount paid for transaction for installing a plant on Chinese technology - cheque was bounced for insufficient fund and stop payment - such technology from China existing (for which cheque was issued) on the date of encashment of cheque or not - it is submitted that the entire case of prosecution is devoid of criminal mens rea and the instant prosecution is merely a misuse of the process of law - HELD THAT - It is an admitted position that the petitioner and the informant have entered into transaction for installing a plant on Chinese technology. It appears that after taking cheque of Rs. 51 Lakhs, the petitioner was traceless for about 3 months and thereafter he was traced and he has issued a cheque of Rs. 51 Lakhs in favour of opposite party no. 2, which was instructed as stop payment by the petitioner. In spite of issuance of cheque, it was not encashed, opposite party no. 2 was required to take remedy under the Negotiable Instruments Act. It appears that statutory notice etc. was not issued and the present FIR was registered, which clearly suggests that Section 138 of the Negotiable Instruments Act is not made out. There is no doubt that the document of unimpeachable character can be considered, however, if such dispute is there, that cannot be appreciated under Section 482 Cr.P.C. A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of SURYALAKSHMI COTTON MILLS LTD. VERSUS RAJVIR INDUSTRIES LTD. ORS. 2008 (1) TMI 865 - SUPREME COURT , where it was held that The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable. There is no doubt that mere breach of contract and cheating would depend upon the intention of the accused at the time of alleged inducement, as has been held by the Hon'ble Supreme Court in the case of INTERNATIONAL ADVANCED RESEARCH CENTRE FOR POWDER METALLURGY AND NEW MATERIALS (ARCI) ORS. VERSUS NIMRA CERGLASS TECHNICS (P) LTD. ANR. 2016 (3) TMI 32 - SUPREME COURT as relied by the learned counsel for the petitioner, however, in the case in hand, it has been alleged that the said technology was never introduced by China and on the said ground, the amount was taken. Thus, that dispute is distinguishable in the facts and circumstances of the present case. Further it is well settled that if injustice is not done, in the garb of Section 482 Cr.P.C., second revision is not maintainable after dismissal of the revision petition. The learned Court will proceed under Sections 406 and 420 of the Indian Penal Code, in accordance with law - Petition allowed in part.
Issues Involved:
1. Quashing of the order dated 08.04.2015 by the S.D.J.M., Hazaribag. 2. Quashing of the order dated 14.10.2015 by the Sessions Judge, Hazaribag. 3. Validity of charges under Sections 406 and 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. 4. Principles of discharge under Section 239 Cr.P.C. 5. Admissibility of documents and disputed facts. 6. Maintainability of second revision under Section 482 Cr.P.C. Summary: Issue 1: Quashing of the order dated 08.04.2015 by the S.D.J.M., Hazaribag The petitioner sought to quash the order dismissing his discharge application under Section 239 Cr.P.C. in connection with Giddi P.S. Case No. 81/2011, which was registered under Sections 406/420 of the IPC and Section 138 of the Negotiable Instruments Act. Issue 2: Quashing of the order dated 14.10.2015 by the Sessions Judge, Hazaribag The petitioner also sought to quash the order by the Sessions Judge, Hazaribag, which dismissed his revision application against the S.D.J.M.'s order. Issue 3: Validity of charges under Sections 406 and 420 of the IPC and Section 138 of the Negotiable Instruments Act The petitioner argued that the investigation lacked cogent material and that no case under Sections 406 and 420 IPC or Section 138 of the Negotiable Instruments Act was made out. The petitioner contended that the prosecution's case lacked criminal mens rea and that the cheque in question was not part of the documents submitted under Section 173(3) Cr.P.C. He also alleged that the cheque was taken at gunpoint, which the informant concealed. The court found that the statutory notice under the Negotiable Instruments Act was not issued, suggesting that Section 138 was not applicable. However, the allegations of cheating and misappropriation under Sections 406 and 420 IPC were found to be maintainable due to the disputed facts and the nature of the transaction involving Chinese technology. Issue 4: Principles of discharge under Section 239 Cr.P.C. The petitioner relied on several judgments to argue for discharge, emphasizing that the court should not act as a post office for the prosecution and must sift through evidence to determine whether a prima facie case exists. The court agreed that strong suspicion must be present to dismiss a discharge petition but found that such suspicion existed for the IPC charges. Issue 5: Admissibility of documents and disputed facts The court noted that documents of unimpeachable character could be considered, but disputed documents could not be appreciated under Section 482 Cr.P.C. The court found that there were disputed questions of fact regarding the alleged Chinese technology and the cheque, which warranted proceeding with the trial under Sections 406 and 420 IPC. Issue 6: Maintainability of second revision under Section 482 Cr.P.C. The court held that a second revision under Section 482 Cr.P.C. is not maintainable after the dismissal of the revision petition unless there is a clear case of injustice. The court found no such injustice regarding the IPC charges but did find that the case under Section 138 of the Negotiable Instruments Act was not made out. Conclusion: The petition was allowed in part. The court discharged the petitioner from liability under Section 138 of the Negotiable Instruments Act but maintained the charges under Sections 406 and 420 of the Indian Penal Code. The learned court was directed to proceed under these sections in accordance with the law. The interim order, if any, was vacated.
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