TMI Blog2020 (1) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... not be a basis for initiating criminal proceeding. It is the documents of the complainant, which show that the cheques were given by way of security. Even if I do not believe the statement of the accused, the documents of the complainant cannot be brushed aside - Since the cheques were given by way of security, which is evident from the complainant s documents (though this fact has also been suppressed in the complaint petition), I find that Section 138 of the Negotiable Instruments Act is also not attracted in this case. Application allowed. - Cr. M.P. No. 2635 of 2017 Cr. M.P. No. 2655 of 2017 - - - Dated:- 17-12-2019 - HON BLE MR. JUSTICE ANANDA SEN For the Petitioner : Mr. Keshav Murthy, Advocate Mr. Amritansh Vats, Advocate For the State: Mr. Ashok Kumar, A.P.P. For the O.P. No.2 : Mr. Rajeev Ranjan Tiwari, Advocate ORDER Cr. M.P. No.2635 of 2017 1. Petitioner, in this application, has prayed for quashing the order dated 04.07.2016 passed by the Judicial Magistrate First Class, Palamau at Daltonganj, whereby cognizance of offence under Section 420 of the Indian Penal Code and Section 138 of the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2017). In June/July 2015 when the complainant met the accused, the accused assured that the amount will be credited sometime in October. Then, on 20.10.2015, cheques were deposited in the account of the complainant, but, the same got dishonoured. The complainant sent legal notice under Section 138 of the Negotiable Instruments Act, but, no reply was given. The complainant had no other alternative than to approach the Court by filing the complaint case. 3. The complainant examined himself on solemn affirmation and he has adduced three witnesses in support of his contention, during enquiry. The Court, thereafter, considering the complaint and the statement of the enquiry witnesses, vide order dated 04.07.2016, took cognizance of the offence under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act and issued summons to this petitioner. Thereafter during pendency of this criminal miscellaneous petition, a discharge petition was filed by the petitioner, which was rejected on 13.06.2019 by the Judicial Magistrate First, Palamau. 4. Being aggrieved by these two orders, the accused has approached this Court for quashing both these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the petitioner refers to several documents and bank statements to suggest that maximum amount of loan has been repaid and the complainant, with a malafide intention had produced the cheques, which were, in fact, deposited by way of security. 7. Learned counsel appearing on behalf of the complainant submits that from the facts of this case and from the facts narrated in the complaint petition, it would be crystal clear that the petitioner had taken loan of ₹ 2 crore from the complainant. The said amount was, admittedly, paid through the bank account of complainant s daughter, through complainant s bank account and also sometime, by way of cash. He submits that the accused did not had any intention to repay the loan from the very beginning thus, gave three cheques, which got dishonoured. This fact clearly constitutes an offence punishable under Section 420 of the Indian Penal Code. Since cheques were dishonoured, offence under Section 138 of the Negotiable Instruments Act is attracted in this case. It is submitted that whether the cheques were given for purposes of security or not is a matter of trial and cannot be decided at the stage of either taking cogniz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f taking cognizance, the Court has only to see whether any prima facie case is made out or not. If a prima facie case is made out, the Court is bound to take cognizance. At the time of framing of charge, in a complaint case, the Court has to see as to whether there are any materials to frame charge on the basis of materials on record, i.e., the complaint petition and the statement of the witnesses, which have been recorded before charge. 11. As stated earlier, the case of the complainant is that he was cheated as the accused had taken loan of ₹ 2 crore from him on the pretext of doing business, but, did not refund the same and rather handed over three cheques, which got dishonoured. Further, it has been mentioned that four agreements were entered into by and between the parties. These documents of agreements entered into between the parties have been brought on record by the opposite party No.2, i.e., the complainant himself. These agreements are on non-judicial stamp papers of ₹ 50/- each, which are numbered as B 489155, B 489156, B 489157, and B 489159. Reference of these four agreements are there in the complaint petition itself. From perusal of these docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re produced by the complainant before this Court, wherein it has been clearly mentioned that the cheques were given as security. Thus, on the facts of this case, it can be said that it is the case of the complainant also that the cheques were given by way of security. Hence, this is not a case where the defence only stated that cheques were given by way of security. Thus, on the facts of this case, the judgment of the Hon ble Supreme Court in Womb Laboratories (supra) is not applicable here. Further, it is very surprising that the agreement documents, which is the complainant s documents and which state that the cheques were given by way of security, though has reference in the complaint petition, but, the complainant has very cleverly not mentioned in the complaint petition that the cheques were given by way of security, rather, gave an impression to the Court that the said cheques were given in discharge of debts and liabilities. 15. Further, when I go through the complaint petition, I find that the complainant has stated that in 2014, the amount of loan was asked for and ₹ 2 crore from time to time was given after 2014. From the perusal of the entire complaint pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also entering the same in the diary maintained by her. In paragraph 25, she stated that in 2014, loan of ₹ 2 crore was taken, but, the same was not returned. 17. From the aforesaid facts, it is quite clear that there was a long standing monetary transactions going on between the parties. This fact of long standing monetary transaction from 2011, which was continuing between the parties, has been suppressed by the complainant in the complaint petition. From the evidence before charge of the daughter of the complainant, it is clear that there were monetary transactions from 2011 to 2014 and the amounts were paid to the accused and accused also paid amounts in her account and there was no dispute in these transactions. The complainant in the complaint petition gives an impression that their relationship started in the year 2014, which is not correct. 18. When a complainant approaches the Court seeking some relief against some person, he has to come up with clean hands. He cannot suppress material facts to give a wrong impression to the Court. In this case, the same has been done by the complainant. The suppression of fact by the complainant is in two coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, on later stage, but once discovered, it is the duty of the Court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants. Further, in Para- 43.4, the Hon ble Supreme Court has held as follows:- 43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. As held earlier, all the aforesaid facts are undisputed facts and admitted by the complainant, which surfaced from the pleadings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheques were given by way of security. Even if I do not believe the statement of the accused, the documents of the complainant cannot be brushed aside. As held earlier, supported by the decision of the Hon ble Supreme Court in the case of Sudhir Kumar Bhalla (supra) a cheque given by way of security cannot attract Section 138 of the Negotiable Instruments Act. Since the cheques were given by way of security, which is evident from the complainant s documents (though this fact has also been suppressed in the complaint petition), I find that Section 138 of the Negotiable Instruments Act is also not attracted in this case. 22. Further, I find that the Judicial Magistrate, while deciding the discharge petition, has also misdirected himself in passing the impugned order dated 13.06.2019. While dismissing the discharge application filed by the petitioner, the Judicial Magistrate only confined himself to the complaint petition and has stated not even a single word as to what are the materials, which surfaced in the evidence before charge. The impugned orders suggest that the materials, which were necessary to be considered while deciding the discharge application were not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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