Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
CASE NO.:
Appeal (crl.) 941 of 2001
PETITIONER:
M/S INDSEAM SERVICES LTD.
Vs.
RESPONDENT:
BIMAL KUMAR KEJRIWAL (HUF)
DATE OF JUDGMENT: 14/09/2001
BENCH:
D.P.MOHAPATRA & K.G.BALAKRISHNAN
JUDGMENT:
D.P. Mohapatra,J.
Leave granted.
M/s Indseam Services Limited, an accused in
complaint case No.C.1628/96 pending before the
Metropolitan Magistrate, 12th Court, Calcutta, has filed
this appeal assailing the order dated 10.07.2000 of the
Calcutta High Court dismissing the Revision Petition filed
by it for quashing the order of the magistrate taking
cognizance of the offence under Section 420, Indian
Penal Code, and issuing process to the accused.
The complaint case was registered on receipt
of the complaint filed by one Krishan Kumar Kejriwal,
authorised representative of Bimal Kumar Kejriwal, who is
the respondent herein, alleging, inter alia, that three
cheques drawn by the officers of the appellant-company
in favour of the respondent were returned by the bank on
instructions received from the drawer not to encash them.
The complainant contended that on the facts averred in
the complaint petition the accused have committed the
offences under Section 138/141 of the Negotiable
Instruments Act and Section 420 read with Section 120B
of the IPC.
The learned Magistrate on perusal of the
complaint petition and statement of the complainant and
other materials produced by him, dismissed the complaint
petition under Section 203 of the Criminal Procedure
Code holding that there was no sufficient ground for
proceeding against the accused, vide the order dated
1.10.1996. Therein the learned Magistrate observed that
the dispute between the parties cropped up due to breach
of contract between them and that the dispute is of a civil
nature. The complainant challenged the said order by
filing a Review Petition before the High Court. The High
Court disposed of the case by the order dated 21.3.1997
holding that the learned Magistrate was right in not taking
cognizance of the offence under Section 138/141 of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
Negotiable Instruments Act and his order in that regard
cannot be interfered with; that the learned Magistrate
should have taken cognizance of the offence under
Section 420 IPC. The High Court issued a direction to the
learned Magistrate to hold further enquiry into the
complaint and pass appropriate order. On receipt of the
order of the High Court the learned Magistrate by the
order dated 9.12.1997 took cognizance under Section
420/120B IPC and issued process to all the accused
persons. The order passed by the Magistrate is quoted
hereunder:
"I have also gone through the order of
Hon’ble High Court. On careful scrutiny
of the materials on record, I find that
there is sufficient ground to proceed
against the accused persons u/s
120B/420 IPC.
Issue Summons against all the accused
persons u/s 120B/420 IPC requisites are
to be put in at once."
The appellant filed a revision petition in the
High Court assailing the said order. The learned Judge
declined to interfere with the cognizance order passed by
the learned Magistrate for the reason that when there was
a specific direction from the High Court to take
cognizance of the offence under Section 420 IPC and the
Magistrate passed the order in view of such direction it will
not be proper for the High Court to hold otherwise. The
relevant portion of the order reads as follows:
"It appears that the learned
Magistrate took cognizance of the
offence under Section 420/120B of
the Indian Penal Code and issued
process against the accused
persons in view of the direction
given by this Court. In my
considered opinion when there is a
specific direction from this Court
directing the learned Magistrate to
take cognizance of the offence
under Section 420 IPC, it will not be
proper for this Court to hold
otherwise.
In view of the discussions made
above I think it will not be proper for
this Court to pass any further order
or to go into the merit of the case in
view of the judgment delivered by
Justice Tiwari. This court cannot sit
on appeal over the judgment and
order passed by a co-ordinate
bench of this Court. The revisional
application is accordingly dismissed.
However, liberty is granted to the
petitioner to agitate all the points,
which he has taken before this court
in this revisional application, before
the trial court at the appropriate
stage of the proceedings."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
Shri Rakesh Dwivedi, learned senior counsel
appearing for the appellant raised the contentions that on
reading the complaint petition and accepting the
averments made therein as correct, no prima facie case
for the offence of cheating punishable under Section 420
IPC is made out; that the averments made in the
complaint petition do not show that the element of deceit
on the part of the accused persons was present when the
parties entered into the contract; that the transactions
between the parties and liability of the appellant
thereunder, if any, are of civil nature and criminal
prosecution in such a case is a means of harassing the
accused persons and gives rise to abuse of the process of
court. Shri Dwivedi also contended that the learned
magistrate passed the cognizance order without holding
any enquiry despite the specific direction of the High
Court.
Per contra, Shri D.A.Dave, learned senior
counsel appearing for the respondent contended that the
ingredients of the offence of cheating punishable under
Section 420 IPC are made out on the averments in the
complaint petition and therefore the learned Magistrate
was right in passing the order taking cognizance of the
offence under Section 420 IPC and the High Court rightly
dismissed the Revision Petition filed by the appellant. Shri
Dave further contended that the complainant had entered
into the contract with the accused persons and parted with
substantial sum of money (rupees eighty lakhs) on the
basis of the three cheques issued by the latter in his
favour which were returned by the Bank on the
instructions issued by the accused persons. Referring to
illustration (f) of Section 415 IPC Sri Dave submitted that
on the averments made in the complaint petition the
ingredients of the offence are satisfied.
On perusal of the order under challenge it is
clear that the learned single Judge disposed of the revision
petition filed by the appellant for setting aside the
cognizance order and for quashing the criminal proceeding
without entering into the merits of the case. The learned
single Judge did not consider the nature of the contract
between the parties, the arrangement for payment of dues
by the accused persons to the complainant, nor did he
record a finding that the ingredients of the offence of
cheating defined under Section 415 IPC were prima facie
made out from the averments in the complaint petition and
the statement on oath by the complainant before the
learned Magistrate. The learned single Judge felt bound by
the observations made in the order passed on 21st March,
1997 in which another single Judge (Justice S.K.Tiwari)
while accepting the position that the Magistrate rightly did
not take cognizance of the offence under Section 138/141
Negotiable Instruments Act had observed that the learned
Magistrate should have taken cognizance of the offence
punishable under Section 420 IPC. From the order under
challenge it is manifest that the learned single Judge did
not pay due attention to the part of the order in which the
learned Magistrate was directed to hold further enquiry into
the complaint. While judging the question whether the
cognizance order passed by the learned Magistrate was
sustainable in law it was incumbent for the learned single
Judge to go into the question whether the complainant has
been able to make out a prima facie case for the offence of
cheating on the averments in the complaint petition and his
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
statement on oath. The matter should have been
examined in the light of the contentions raised by the
accused applicant in the revision petition and finding
recorded. The learned single Judge also did not consider
whether the learned Magistrate held any further enquiry
before passing the cognizance order; whether the dispute
raised in the case is of civil nature and continuing the
criminal proceeding will give rise to abuse of the process of
court.
We are constrained to observe that there has
been an avoidance of the function of judicial determination
of the question of acceptability or otherwise of the plea
raised by the accused persons for setting aside the
cognizance order and for quashing the criminal
proceedings merely on the ground that on the previous
occasion the single Judge had made an observation that
cognizance should have been taken under Section 420
IPC, ignoring the further direction given in that order to the
Magistrate to hold enquiry into the complaint.
For the reasons discussed in the foregoing
paragraphs, the order under challenge being unsustainable
has to be set aside and the matter is remitted to the High
Court for fresh consideration. Since we are remitting the
matter to the High Court for fresh consideration we do not
deem it proper to make any observation on the merits of the
case.
Accordingly, the appeal is allowed. The order
passed on 10.7.2000 in Criminal Revision No. 1230/98 is
set aside and the matter is remitted to the High Court for
fresh disposal in accordance with law.
.............................J.
(D.P.MOHAPATRA)
.............................J.
(K.G.BALAKRISHNAN)
September 14, 2001
1
1
10