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2024 (6) TMI 706
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....ay of appointing an Advocate in Cr. M.P. No. 3167 of 2019, however, on repeated calls, nobody has responded on behalf of opposite party no. 2. Identical was the situation on 02.04.2024 and for that, the matters were being adjourned with a view to provide one more opportunity to opposite party no. 2. Today again on repeated call, nobody has responded on behalf of opposite party no. 2 and in view of that, these matters are being heard on merit in absence of opposite party no. 2. 3. Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioners and Mr. Santosh Kumar Shukla, Mr. Shiv Shankar Kumar and Mr. Rajesh Kumar, learned counsel for the State in respective Cr. M.Ps. 4. In all these petitions, the prayers are made for quashing of the entire criminal proceeding arising out of Complaint Case No. 379 of 2019 including the order taking cognizance dated 24.07.2019, pending in the Court of the learned Judicial Magistrate, 1st Class, Bokaro. 5. The complaint case was filed alleging therein that the petitioners allegedly entering into a criminal conspiracy to encash the cheques provided to the petitioners under the agreement dated 31.05.2012 by forging and fabricating bills of....
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....6 of the agreement gives power to the company to verify the stock of the cements remaining with the C & F Agent. He further submits that in terms of the security payable under the agreement, M/s New City Agency issued 7 cheques in favour of the petitioner-company, which were issued through Bank of Baroda and handed over to the representative of the petitioner-company. He submits that physical verification was conducted on 27.02.2017 and it was found that there was shortfall of 1468 MT of cement, which amounts to Rs. 86,48,262/-, contained in Annexure-5. He submits that due to huge shortfall of goods, the petitioner-company called upon M/s New City Agency to confirm the shortfall of the goods and the proposed schedule for payment of the outstanding amount of Rs. 86,48,262/-, which was acknowledged by Mr. Manoj Bhalotia, son of opposite party no. 2 vide letter dated 28.02.2017 and assurance was given that such amount will be paid, thereafter, the said M/s New City Agency paid total sum of Rs. 16 Lakhs in two installments and it was also undertaken to pay further amount. He submits that the petitioner-company again called upon M/s New City Agency to pay the complete outstanding amount....
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....hus, it is crystal clear that the dispute is there with regard to an agreement and undertaking was also there of M/s New City Agency of fulfilling the said loss to the company. The cheque in question was presented by the company in the bank, which was not honoured and, thereafter, the complaint case was filed in the competent court in the State of Chhattisgarh under Section 138 of the Negotiable Instruments Act and, thereafter, the present case has been filed by the complainant. The filing of the case at Raipur Civil Court under Negotiable Instruments Act and issuing of cheque by opposite party no. 2 and directing the bank to stop payment are also admitted in the complaint petition itself, which clearly suggests that if any case is made out i.e. civil in nature. 9. In this background, if any complaint case is filed by any person, learned Court has got responsibility to examine the facts cautiously and then only to proceed in the matter. The said power is required to be exercised with great caution and after suitable judicial application of mind and role of lower judiciary in preventing abuse of court process has been considered by the Hon'ble Supreme Court in the case of Krish....
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.... and must be judiciously employed to stem the flow of frivolous litigation. 21. All of this leads to one inescapable conclusion. That the trial Judge has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him. This Court has earlier emphasised on the high degree of responsibility shouldered by the trial Judges in All India Judges' Assn. (1) v. Union of India [All India Judges' Assn. (1) v. Union of India, (1992) 1 SCC 119 : 1992 SCC (L&S) 9] . Ranganath Misra, C.J. (as he was then) writing for himself and two others stated: (SCC p. 134, para 42) "42. The trial Judge is the kingpin in the hierarchical system of administration of justice. He directly comes in contact with the litigant during the proceedings in Court. On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered. The personality, knowledge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the Court's functioning successful." 22. F....
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.... but would also protect the right to liberty that every person is entitled to under Article 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land." 10. So far as cheating and preparation of false document is concerned, three ingredients are required to be fulfilled for making out a case. A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of Mohammed Ibrahim and others v. State of Bihar and another, reported in (2009) 8 SCC 751, wherein, in paragraphs 13 and 14, it has been held as under: "13. The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other....