Smt. Shalu Singh @ Shalu Singh & Anr vs State Of Bihar & Anr on 12 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.46445 of 2014
Arising Out of PS.Case No. -668 Year- 2012 Thana -PATNA COMPLAINT CASE District-
PATNA

1. Smt. Shalu Singh @ Shalu Singh Wife of Ratnesh Singh alias Ratnesh Kumar
Singh, Proprietor of M/S S.A. Trading, Lal Bagh Colony, Police Station – Tilka
Manjhi, District – Bhagalpur, Permanent Address Village – Aguwani, Police Station

– Parbatta, District- Khagaria and Village – Kushwaha, Rajguru, Tarapur, Police
Station – Tarapur, District- Munger.

2. Sri Ratnesh Kumar Singh alias Ratnesh Kumar Singh alias Ratnesh Singh Son of
Late Narmadeshwar Prasad Singh, Resident of Village – Kushwaha Rajguru,
Tarapur, Police Station – Tarapur, District – Munger.

…. …. Petitioner/s
Versus

1. The State of Bihar.

2. Indrajit Chatterji Son of Late Premansu Mohan Chatterji, Resident of CB 191,
Sector 1 Salat Lake Kolkata – 700064 (West Bengal) at Present Assistant General
Manager, AMCO Batteries Ltd., Registered Office 1st Floor, Addison Building
803, Anna Salai, Chennai – 600002.

…. …. Opposite Party/s

Appearance:

For the Petitioner/s : Mr. Viveka Nand Singh, Advocate.

For the State : Mr. S. Dayal, A.P.P.

For the Opp. Party no. 2 : Mr. Gouranga Chatterjee, Advocate.

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 12-10-2017

Heard learned counsel for the petitioners and learned

counsel representing the complainant – opposite party no. 2 as well as

learned A.P.P. for the State.

2. Petitioners in the present case are seeking quashing of

the order dated 03.10.2012 passed by learned Sub Divisional Judicial

Magistrate, Patna City in Compliant Case No. 668(C)/2012 by which

the learned Magistrate has taken cognizance of the offences under
Patna High Court Cr.Misc. No.46445 of 2014 dt.12-10-2017

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Sections 406, 418 504 of the Indian Penal Code and decided to

issue summons to the petitioners.

3. Learned counsel for the petitioners refers the complaint

petition which is Annexure-1 to the present application. According to

the learned counsel, a bare perusal of the complaint petition without

adding or subtracting anything out of that would show that the

petitioners on the one hand being the Proprietors of M/s S.A. Trading

of Bhagalpur and the opposite party no. 2 being the representative of

the company, namely, M/s AMCO Batteries Limited were in a

business relationship. According to him, there are complaints that the

company was supplying batteries to the accused persons according to

their demand and the accused persons had promised that they will

make prompt payments of the goods received by them but, later on,

when the company found that the accused persons were making

irregular payments, the company wanted to stop supplying goods, as

the accused persons gave a false representation that they will liquidate

the dues very soon, the company continued with the supply. Learned

counsel further submits that according to the complainant, the accused

gave seven cheques of various dates amounting to Rs. 12,00,000/- to

the company but those cheques stood dishonoured on presentation due

to insufficiency of funds. Admittedly no action was taken under the

provisions of the Negotiable Instruments Act, 1881. The business
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relationship, according to the complaint, had ceased to exist with

effect from 15.10.2010. A reading of the complaint, according to the

learned counsel, would show that in fact it is an admission of the

complainant that the accused paid a sum of Rs. 1,98,000/- but the

allegation is that accused-petitioners did not make payment of rest

amount which led to filing of the present case.

4. Submission of the learned counsel representing the

petitioners is that the dues of the company is a disputed claim, the

parties were having business relationship and there were several

transactions where under a running account they were maintaining

their debits and credits and, if at all, the complainant is of the view

that certain amount has not been paid by the accused persons, it would

only be in the nature of a money claim which can at best give rise to a

civil dispute but in no way in the facts of the present case a prima

facie case under Sections 406, 418 504 IPC is made out. Learned

counsel also submits that the learned Magistrate has taken cognizance

under these provisions of the Indian Penal Code in a routine and

mechanical manner as it will be evident that there is no allegation of

entrustment of any goods, the relationship is very clearly stated as in

the nature of a transaction where sale of goods had to take place,

further there is no allegation of committing any act of intentional

insult, therefore, there was no occasion for the learned Magistrate to
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take cognizance under Section 504 IPC. Learned counsel also relied

upon the judgment of the Hon’ble Supreme Court in the case of

Inder Mohan Goswami Anr. Vs. State of Uttaranchal Ors.,

reported in (2007) 12 SCC 1.

5. On the other hand learned counsel representing the

complainant – opposite party no. 2 has opposed the application

submitting that in the facts of the present case, the order taking

cognizance has been rightly passed and it needs no interference.

Learned counsel submits that no doubt there was a business

relationship between the parties but the fact remains that the

complainant did not pay the outstanding dues to the company and the

cheques issued by him stood dishonoured for insufficiency of funds.

He, however, is not in a position to explain as to why despite

cessation of relationship with the accused admittedly with effect from

15.10.2010, even after dishonour of cheques due to insufficient funds,

no action was taken by the opposite party no. 2 or by the company to

whom the opposite party no. 2 is representing under the provisions of

the Negotiable Instruments Act, 1881.

6. This Court has perused the materials available on the

record and has considered the rival submissions. At this stage, learned

counsel for the opposite party no. 2 submits that because after

dishonour of cheques some payments were made by the accused
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persons and they had promised to pay the rest of the amount,

therefore, no action was taken against dishonour of cheques. Thus

from the complaint petition as well as from submissions of learned

counsel representing the opposite party no. 2 it is evident that the

present complaint has been brought as a tool to realize the money

allegedly due to the complainant.

7. From the contents of the complaint petition coupled

with the other documents enclosed with the complaint petition, which

have not been controverted or denied on behalf of the opposite party

no. 2, this Court would come to a conclusion that when the parties

were in a kind of business relationship where goods were being

supplied to the firm of the petitioners at Bhagalpur since 2006 and

payments were being made by the firm in a running account, no case

U/S 406 IPC would be made out. This is not a case where the

complainant has alleged that the goods were handed over by way of

entrustment to the accused persons. Learned counsel for the opposite

party no. 2 has admitted that the parties were in a business

relationship since 2006 and the petitioners have brought on record a

statement of accounts showing that the accused persons had also a

claim against the company / opposite party no. 2.

8. Learned counsel for the opposite party no. 2 denies the

claim but this Court finds that whatever is the dispute it is at best in
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the nature of a money claim by both the parties. In the facts of the

present case, this Court is of the view that a criminal proceeding

against the petitioners for alleged non-payment of a disputed claim is

only an abuse of the process of the court.

9. Petitioners have relied upon paragraph 23 to 26 of the

judgment referred here-in-above which are quoted hereunder for a

ready reference.

“23. This court in a number of cases has laid down the
scope and ambit of courts_ powers under Section
482 Cr.P.C. Every High Court has inherent power to act
ex debito justitiae to do real and substantial justice, for
the administration of which alone it exists, or to prevent
abuse of the process of the court. Inherent power
under Section 482 Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under Section 482 Cr.P.C. though
wide have to be exercised sparingly, carefully and with
great caution and only when such exercise is justified by
the tests specifically laid down in this section itself.
Authority of the court exists for the advancement of
justice. If any abuse of the process leading to injustice is
brought to the notice of the court, then the Court would
be justified in preventing injustice by invoking inherent
powers in absence of specific provisions in the Statute.

25. Discussion of decided cases Reference to the
following cases would reveal that the courts have
consistently taken the view that they must use this
extraordinary power to prevent injustice and secure the
ends of justice. The English courts have also used
inherent power to achieve the same objective. It is
generally agreed that the Crown Court has inherent
power to protect its process from abuse. In Connelly v.

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DPP [1964] AC 1254, Lord Devlin stated that where
particular criminal proceedings constitute an abuse of
process, the court is empowered to refuse to allow the
indictment to proceed to trial. Lord Salmon in DPP v.
Humphrys [1977] AC 1 stressed the importance of the
inherent power when he observed that it is only if the
prosecution amounts to an abuse of the process of the
court and is oppressive and vexatious that the judge has
the power to intervene. He further mentioned that the
court’s power to prevent such abuse is of great
constitutional importance and should be jealously
preserved.

26. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866,
this court summarized some categories of cases where
inherent power can and should be exercised to quash the
proceedings:

(i) where it manifestly appears that there is a legal bar
against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report
or complaint taken at their face value and accepted in
their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the charge.”

10. This court finds that the learned Magistrate has taken

cognizance under Section 406 IPC without there being any ingredient

and further cognizance under Section 418 and Section 504 IPC even

though there is no averment in the complaint petition to give rise to a

prima facie view of an offence under those provisions is bad in law

and the same is liable to be set-aside.

11. In the result the impugned order taking cognizance is

set aside and the application is allowed.

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12. Let it be made clear that any observation for the

purpose of this case made here-in-above shall not prejudice the case

of either party in a civil dispute.

(Rajeev Ranjan Prasad, J)
Dilip, AR

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 13.10.2017
Transmission 13.10.2017
Date

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