Jharkhand High Court: In the petitions filed for quashing the entire criminal proceedings including the order taking cognizance dated 24-07-2019, pending in the Court of the Judicial Magistrate, First Class, Bokaro (‘Judicial Magistrate’), Sanjay Kumar Dwivedi, J., opined that the present controversy posed a typical example of frivolous litigants abusing the Court process to achieve their mischievous ends. The Court stated that the present case arose out of an agreement and the dispute, if any, was of civil nature and for that complaint case was filed. Further, the present case was filed after knowing about the complaint case filed by the petitioner-Century Cement (‘the Company’), which clearly suggested that this was a malicious prosecution against the petitioners. Thus, the Court quashed the complaint case, including the including the order taking cognizance dated 24-07-2019, pending in the Court of the Judicial Magistrate.
Background
In the present case, the complaint case was filed alleging that the petitioners (officers of the Century Cement) entered into criminal conspiracy to encash the cheques provided to them under the agreement dated 31-05-2012, by forging and fabricating bills of huge amount, despite the fact that no material was supplied. It was alleged that the petitioner had committed criminal breach of trust, cheating, forgery. It was also alleged in the complaint that the petitioners had illegally tired to encash the cheques, and initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’).
Petitioners contended that in 2012, being desirous of expanding the operation of the Company in Bokaro district of Jharkhand, entered into discussions with Respondent 2 to act as the Clearing and Forwarding Agent (‘C & F Agent’) of the Company. As per the various discussions, New City Agency was to act as the C & F Agent of the Company for clearing and handling the cement consignments received at Bokaro and Sariya from time to time. New City Agency was also required to promote the sale of cement of the petitioner-company at Bokaro and Sariya.
Thereafter, petitioner entered into an agreement dated 31-05-2012 with New City Agency for providing various services. Petitioner submitted that in terms of security payable under the agreement, New City Agency issued seven cheques in favour of the petitioner-company, which were issued through Bank of Baroda and handed over to the Company’s representatives. During physical verification of the stocks, it was found that there was shortfall of 1468 MT of cement, which amounted to Rs. 86,48,262. Due to huge shortfall of goods, petitioner company called upon New City Agency to confirm the shortfall and payment of the outstanding amount. Thereafter, New City Agency paid total Rs. 16 Lakhs in two instalments and also undertook to pay further amount. However, when the amount was not paid, one cheque was presented before the Bank of Baroda, Raipur, Chhattisgarh and it was not honoured. Thereafter, the company filed complaint case under Section 138 of the NI Act in the Court of the Judicial Magistrate, First Class, Tilda-Neora, Raipur, Chhattisgarh.
Petitioners submitted that the said case was filed on 15-01-2019, in which the summons was issued on 28-01-2019 and after knowing about the said case, the present complaint case was filed on 29-03-2019. Even if any case was made out, civil in nature and for that, criminal case was filed, which was malicious.
Analysis, Law, and Decision
The Court stated that if any complaint case was filed by the any person, the Court had the responsibility to examine the facts cautiously and then to proceed in the matter. The said power was required to be exercised with great caution and after suitable judicial application of mind. The Court stated that in the present case, it was an admitted fact that the cheque was issued as security pursuant to financial transaction by New City Agency and it could not be considered as worthless piece of paper under any circumstances.
The Court stated that when the case under Section 138 of the NI Act was already filed by the petitioner-company, Respondent 2 had all the opportunity to defend the case in that pending complaint case, and without doing so, present complaint case was filed implicating the petitioners. The Court stated that the present controversy posed a typical example of frivolous litigants abusing the Court process to achieve their mischievous ends. Since the matter had already reached to the High Court, it was required to pass an appropriate order to prevent the abuse of its own processes. The Court stated that this Court should not suffer a litigant utilising the institution of justice for unjust means.
The Court stated that the present case arose out of an agreement and the dispute, if any, was of civil nature and for that complaint case was filed. Further, the present case was filed after knowing about the complaint case filed by the Company in Chhattisgarh, which clearly suggested that this was a malicious prosecution against the petitioners. Thus, the Court quashed the complaint case, including the including the order taking cognizance dated 24-07-2019, pending in the Court of the Judicial Magistrate.
[Century Cement, Mumbai v. State of Jharkhand, 2024 SCC OnLine Jhar 2048, decided on 12-06-2024]
Advocates who appeared in this case :
For the Petitioners: Indrajit Sinha, Advocate; Ajay Kumar Sah, Advocate; Rishav Kumar, Advocate;
For the Respondents: Santosh Kumar Shukla, APP; Shiv Shankar Kumar, APP; Rajesh Kumar, APP.
