2024 (6) TMI 706

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....9 and opposite party no. 2 has appeared by way 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 da....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... to want of proper care. According to him, Clause 26 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....16 Lakhs in totality out of the said outstanding amount. Thus, 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 cons....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ole played by the Magistrate in the quest for justice and truth in criminal proceedings, 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 di....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, 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 propert....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow." 12. In view of the above, when the case under Section 138 of the Negotiable Instruments Act was already filed by the petitioner-company, opposite party no. 2 was having all the opportunity to defend the case in that pending complaint case and without doing so, he has filed the present complaint case implicating the petitioners. 13. In this background, the present controver....