(1.) The petitioner, being accused no.1 in ICC Case No.217 of 2016 pending in the Court of learned
S.D.J.M., Angul, has filed this application seeking to
quash order dated 17.12.2016, by which direction has
been given to IIC, Angul Police Station for registration of
the case and causing investigation as per the provisions
contained in Section 156(3) of Cr.P.C.
(2.) Brief facts of the case, as revealed from the complaint petition filed by opposite party no.2, as
complainant before the Court below, are as follows:-
Opposite party no.2-complainant named and
styled as "M/s. Jaydurga Transport" is a proprietorship
firm and the owner of heavy earth moving equipment.
Petitioner-accused no.1 is the owner of "Hindustan
Machinary", a sub-contractor of accused no.2, who is the
contractor of Railway authority and was awarded with the
contract work of doubling the railway track/earth work
from Handapa to Nakchi railway line, along with other
contract work. During course of business, petitioner-
accused no.1, along with other accused persons,
approached opposite party no.2-complainant for supply of
its heavy earth moving equipment for construction of
doubling railway track work from Handapa to Nakchi on
hire basis. After due negotiation amongst the parties,
opposite party no.2-complainant engaged its Tata Hitachi
200 (chain mounting) and three numbers of Haiwa on hourly/monthly hire basis from 24.04.2016 under the
accused persons in the said work.
2.1 After completion of the work and after adjustment of advance paid by accused persons, on 15.07.2016, it was settled/calculated amongst the parties that a sum of Rs.8,11,585/- is due upon accused persons. On that date, petitioner-accused no.1 issued a post dated cheque bearing no. 567298 of ICICI Bank, Bhubaneswar Branch in favour of opposite party no.2-complainant mentioning the date as 05.08.2016 for a sum of Rs.8,00,000/- towards full and final payment. As per commitment of petitioner-accused no.1, on 02.11.2016 the said cheque was deposited by opposite party no.2- complainant with his banker, i.e., Bank of Baroda, Angul Branch, Angul, but it was returned by the Branch Manager on 03.11.2016 due to "insufficient fund" in the account of petitioner-accused no.1. Accordingly, opposite party no.2-complainant, on 03.11.2016, issued a demand notice to petitioner-accused no.1 through its advocate making therein a demand for payment of the aforesaid cheque amount of Rs.8,00,000/- within 15 days from the date of its receipt. But even after receipt of said notice on 07.11.2016, since petitioner-accused no.1 did not take any steps, it was evident that petitioner-accused no.1 had a clear intention to deceive and cheat opposite party no.2- complainant by misappropriating its fund. Petitioner- accused no.1 had dishonest intention, right from the beginning, i.e., from the time of approach for supply of heavy earth moving equipment till issue of cheque in favour of opposite party no.2-complainant, to cheat and cause wrongful loss to opposite party no.2-complainant and wrongful gain for themselves and with such intention they had done the above act. In other words, petitioner- accused no.1, in connivance with other accused persons, had intentionally issued the said cheque to deceive and cheat opposite party no.2-complainant.
2.2 In view of commission of such fraudulent act by accused persons, and after bouncing of cheque in question, opposite party no.2-complainant lodged FIR at Angul Police Station, which straightaway refused to accept the same and directed opposite party no.2-complainant to approach the Court. As a consequence thereof, opposite party no.2-complainant filed ICC Case No. 217 of 2016 before the learned SDJM, Angul with a prayer to send the complaint to IIC, Angul Police Station to treat the same as FIR under Section 156(3) of Cr.P.C. and investigate into the case under Sections 418 and 420 of IPC and to submit final form after completion of investigation. Learned SDJM, Angul, vide order dated 17.12.2016, forwarded the original complaint to IIC, Angul P.S. for its registration as FIR and causing investigation, as per the provisions of Section 156(3) of the Cr.P.C., with the further direction to intimate the Court the fact of registration of such P.S. case number and the progress of investigation. Consequentially, IIC, Angul P.S. registered the complaint as Angul P.S. Case No. 177 dated 31.03.2017 under Sections 418 , 420 and 34 of IPC against accused persons, including the petitioner- accused no.1. Hence this application.
(3.) Mr. S.Pattnaik, learned counsel appearing for the petitioner-accused no.1 strenuously urged that on
the basis of factual matrix, it may be a case under Section
138 of N.I. Act, because of dishonor of the cheque/ instrument for insufficiency of funds, but not a case under
Sections 418 , 420 read with 34 of IPC . It is contended that
the learned Magistrate has committed error while invoking
jurisdiction under Section 156(3) of Cr.P.C., inasmuch as
he has not made enquiry under Section 202 of Cr.P.C.,
and without making such enquiry sent the complaint
petition to IIC, Angul P.S. to register the same as FIR and
cause investigation, which cannot sustain in the eye of
law. Thereby, the order impugned dated 17.12.2016
cannot sustain in the eye of law and the same has to be
quashed, including the consequential criminal proceeding.
It is further contended that the "complaint" within the meaning of Section 2(d) of the Cr.P.C. and also the complaint within the meaning of Section 142 of the N.I. Act is different from each other. Hence, the Court below has no jurisdiction to pass an order directing for investigation by the police under the provisions of Section 156(3) of the Cr.P.C.
It is further contended that cheating has been defined under Section 415 of IPC. As such, there was no intention of petitioner-accused no.1 to deceive opposite party no.2-complainant. Had the cheque been placed in the bank on the date mentioned therein, there would not have been insufficiency of funds. As the cheque in question was presented on a subsequent date and due to insufficiency of funds it was returned, it cannot be construed that petitioner-accused no.1 had tried to deceive opposite party no.2-complainant so as to attract the provisions of Sections 417 and 420 of IPC. It is thus contended that the transaction, being purely civil in nature, the jurisdiction of the criminal Court could not have been invoked and more so, the basic requirements of Sections 417 and 420 of IPC are absent and as such, the proceeding is a malicious one and there is bleak chance of ultimate conviction and thereby, before taking cognizance, the Court should ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. Therefore, he seeks for interference of this Court by filing the present application.
To substantiate his contention, he has relied upon the judgment of this Court in Radharaman Sahu v. Trilochan Nanda , 70 (1990) CLT 788, as well as of the apex Court in Inder Mohan Goswami v. State of Uttaranchal , AIR 2008 SC 251. ;