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TMI Blog2020 (1) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned in this criminal miscellaneous petition. 2. The criminal proceeding arises out of complaint case being Complaint Case No.1839 of 2015, instituted by the opposite party No.2 against the petitioner for allegedly committing an offence under Sections 420, 406 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. The complainant in the complaint petition stated that this accused person was studying with the daughter of the complainant at London. After completion of his studies, he settled at Bengaluru and started to work there. As a result of their earlier friendship, this petitioner also became acquainted with the accused person, as he was very cordial with the family of the complainant. The accused came to know that the complainant was also doing business. The accused came to Daltonganj and asked for Rupees One Crore from the complainant so that he could use the same in his business as the accused did not have money by that point of time. The complainant further stated that because of the closeness of the complainant and the accused, the complainant had a belief that he will return the amount and did not apprehend that the accused had any bad intention. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire case is nothing but relates to giving a loan for business purpose by the complainant and the failure of the accused to repay the same. He submits that the same cannot constitute a criminal offence. He submits that the complainant has suppressed material facts, which would be evident from the statement of the complainant witnesses recorded before charge, wherein they have categorically stated that there was long standing monetary transaction between the parties since long. This vital fact has been suppressed by the complainant in the complaint only to mislead the Court and to convert a civil dispute into a criminal offence. It is submitted that the witnesses of the complainant had demolished the case of the complainant. It is lastly submitted that the evidence recorded and the documents brought by the complainant will clearly suggest that there are no ingredients of Section 420 of the Indian Penal Code. 6. As per his submission, so far as it relates to Section 138 of the Negotiable Instruments Act, it is argued that the Hon'ble Supreme Court has held that if a cheque is given by way of security, gets dishonoured, no offence under Section 138 of the Negotiable Instruments Act s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that I have taken cognizance of only the documents filed by the complainant on which the complainant has relied upon, because the defence document cannot be looked into at this stage. 9. Cognizance was taken of offence under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. The allegation against the petitioner is that he had taken loan from the complainant, which was paid through the account of the complainant and his daughter. Petitioner has also given undertakings on non-judicial stamp papers that he will return the said amount and cheques were also handed over to the complainant, but, on depositing threee cheques, out of the cheques given, in the Bank, those got dishonoured. From perusal of the complaint petition, I find that the complainant has mentioned that four agreement documents were notorised in respect of the said loan, which was given to the petitioner. The said documents, i.e., nonjudicial stamp papers, were numbered as B 489155, B 489156, B 489157, and B 489159. Since reference of these four documents find mentioned in the complaint petition and the complainant also annexed these documents in his pleadings before this Court an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that the cheques, which were dishonoured, were given by way of security. It is not in dispute by any of the parties and the reference of the cheques which are in the agreement are same which were dishonoured and subject matter of the complaint. 13. The Hon'ble Supreme Court, in the case of Sudhir Kumar Bhalla versus Jagdish Chand reported in (2008) 7 SCC 137 has held that the criminal liability of the appellant under the provisions of Section 138 of the Negotiable Instruments Act are attracted only on account of dishonor of cheque issued in discharge of liability or debt, but not when they were issued as a security. Counsel for the complainant-opposite party No.2 had placed before this Court a judgment of the Hon'ble Supreme Court in Criminal Appeal Nos.1382-1383 of 2019 [M/s Womb Laboratories Pvt Ltd. versus Vijay Ahuja & Anr.] and by referring to the said judgment, he submitted that whether cheques were given for the purpose of security or against discharge of a debt or liability is a matter of trial and cannot be decided at the stage of framing of charge or taking cognizance. Thus, he submitted that this Court cannot give a finding on these facts. 14. When I go t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence, I find that she in her statement at paragraph 16 has stated that in the year 2011 to 2013, amount of Rs. 35 lakh was given to the accused through her bank account. In paragraph 15, she stated that she is not aware in 2011, how much amount she has transferred to the accused. Further, in paragraph 16, she has stated that she is not remembering as to in the year 2011 how much amount was transferred by the accused to her. She stated that from 2012 to December 2013, approximately Rs. 23-25 lakh was transferred from her account to the accused. She further stated that between 2012 and 2013 roughly Rs. 1.5 lakh to Rs. 2 lakh was transferred to the account of the accused from the account of her father (complainant herein) and her maternal uncle. Paragraph 17 of her evidence before charge is very vital. She states that from 2012 to December 2013, the accused has transferred Rs. 15-16 lakh in her account. Further, in the year 2012, about Rs. 1.30 crore was transferred to the account of the accused from her account and also from the account of her relatives. Further, she stated in paragraph 18 of her evidence that in 2014, Rs. 10 lakh was transferred from the account of this accused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can very well be taken note of by this Court. 19. When a party approaches the Court for any relief, he must come with clean hands. It is expected that in a petition filed by him before the Court, he will narrate all the facts. If it is the complainant, who approaches the Court seeking relief, he must also be fair enough and should come with clean hands. In this case, I find that all the important facts have been suppressed by the complainant in the complaint petition. During course of leading evidence before charge, those facts surfaced before the Court. Some surfaced during hearing of this criminal miscellaneous petition, that too at the instance of the complainant. The process of the Court cannot be abused by anyone by distorting and narrating incomplete or incorrect facts. The Hon'ble Supreme Court in the case of "A. Shanmugam -versus- Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Parfipalanai Sangam Represented by its President Etc., reported in (2012) 6 SCC 430" in Para- 38 & 39 has held as follows:- "38. False averments of facts and untenable contentions are serious problems faced by our courts. The other problem is that litigants deliberately create confusion b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding business transaction and inability of refunding a loan has been given a color of criminal offence of cheating punishable under Section 420 of the Indian Penal Code. A breach of trust with mens rea gives rise to a criminal prosecution. In this case when I go through the evidence before charge of the complainant and the documents of the complainant, I find that there were long standing business transactions between the parties. Since 2011 money was advanced by the complainant and his family members to the accused and the complainant witness admits that money was also transferred from the account of the accused to the account of daughter of the complainant. From the evidence, I find that there is no material to suggest existence of any mens rea. Thus, this case becomes a case of simplicitor case of non-refunding of loan, which cannot be a basis for initiating criminal proceeding. The Hon'ble Supreme Court in the case of Samir Sahay alias Sameer Sahay versus State of U.P. & Anr. reported in (2018) 14 SCC 233 held that when the dispute between the parties was ordinarily a civil dispute resulting from a breach of contract on the part of the appellant by nonrefunding of amount adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby quashed. 24. This criminal miscellaneous petition (Cr. M.P. 2635 of 2017), accordingly, stands allowed. Cr. M.P. No. 2655 of 2017 25. So far as Cr. M.P. No.2655 of 2017 is concerned, I find that only difference between this case and Cr. M.P. No.2635 of 2017 is three cheques. The three cheques, which got dishonoured for which Complaint Case No.1839 of 2015 was initiated, which was subject matter of Cr. M.P. No.2635 of 2017. The second set of three cheques, which got dishonoured, are the subject matter of Complaint Case No.1833 of 2015, the orders passed wherein and the proceeding whereof is under challenge in Cr. M.P. No.2655 of 2017. 26. It is an admitted case of the parties that these three cheques and other three cheques, which is subject matter of Cr. M.P. No.2635 of 2017 are covered by agreements, reference whereof has been given in paragraph 2 and paragraph 9 of this order. Both the parties agreed that all the transactions are one and same, but, two cases were filed for dishonouring of these six cheques. Both the parties contended that arguments in both the cases are same and materials are also same. 27. In view of what has been held above, this criminal misc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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