Allowed

Santosh Rai v. the State of Jharkhand

Jharkhand HC12 Sept 2024Cr.Rev./181/2020

Case brief

AI extract

What is this about?

The High Court quashed the Judicial Magistrate's order altering the charge in a Section 138 NI Act case. The court held that adding charges of cheating and criminal breach of trust (IPC Sections 405, 420, 34) was impermissible as the original complaint contained no such allegations, other persons were not named as accomplices, and the revision was based on witness evidence improvements.

What did the court decide?

The impugned order dated 01.10.2019 altering the charge to include Sections 405, 420, and 34 IPC is quashed.

Santosh Rai Vs the State of Jharkhand — Cheque Dishonour | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 181 of 2020

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Santosh Rai, aged about 33 years, son of Shri Parmod Rai, resident ofAt & P.O. Bariyegu, Ward No.14, P.S.-Muffasil Begusarai, DistrictBegusarai, Bihar, Pin-851101 … … Petitioner

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-Versus-

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The State of Jharkhand

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Madan Prasad, son of Late Ram Lakhan Prasad, Permanent resident of Jagir Mohalla, Begusarai, P.O. and P.S.- Nagar Begusarai, District- Begusarai, State- Bihar. At present resident of Lalpur, P.O. and P.S.- Lalpur, District- Ranchi, State- Jharkhand, Pin-834001 … …Opp. Parties

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--- CORAM:HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Yadu Nandan Mishra, Advocate : Mr. Abhishek Kumar, Advocate For the State :Mr. Fahad Alam, APP For the O.P. No. 2 : Ms. Chandana Kumari, Advocate ---

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9/12.09.2024 Heard the learned counsel for the parties.

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2. This revision petition is directed against the order dated 01.10.2019 passed by the learned Judicial Magistrate, 1^st Class, Ranchi in Complaint Case No.1105 of 2016 whereby a petition filed by the Complainant (Opposite Party No.2) under Section 216(1) of Cr.P.C. seeking alteration of charge and addition of charge under Sections 405 and 420 of the Indian Penal Code read with Section 34 of the Indian Penal Code has been allowed.

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3. Learned counsel appearing on behalf of the petitioner while assailing the impugned order has submitted that the case was filed for the offence under Section 138 of the Negotiable Instruments Act by Madan Prasad (opposite party no. 2) and apart from the complainant name of two witnesses were cited in the Complaint. Cognizance was taken and charge was framed under Section 138 of the Negotiable Instruments Act and two witnesses were examined. He has also submitted that one of the witnesses was wife of Madan Prasad who was not shown as a witness in the Complaint. She was examined as P.W.-2. The Complainant was examined as P.W.-1.

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4. The learned counsel for the petitioner further submits that a petition under Section 216(1) of Cr. P.C. was filed by the Complainant

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to add Sections 405,420 read with Section 34 of the Indian Penal Code by stating that it has come on record that apart from the offence under Section 138 of Negotiable Instruments Act, the offences under Section 405 and Section 420 of the Indian Penal Code read with Section 34 of the Indian Penal Code were also made out. The learned counsel submitted that in the complaint case, no allegation of cheating or criminal breach of trust was made and, in the petition, filed under Section 216(1) of Cr.P.C., the Complainant has referred to certain agreement of sale and issuance of cheque in connection with such agreement and has also stated that the property has already been registered. It has also been stated in the petition that deposition of the witnesses of the complainant clearly revealed that there was ill intention and ill motive of the accused persons and that one Ranjit Kumar being the brother-in-law of the Complainant took the benefit and conspired with the petitioner and others to grab the property. The learned counsel submitted that in the complaint case, there was only one accused i.e. the petitioner. It is submitted that a rejoinder was filed and the prayer was opposed. However, the learned court has allowed the petition.

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5. The learned counsel submitted that the learned court has recorded that there is sufficient material on record about cheating and dishonestly inducing delivery of property on the part of the accused against the Complainant. The evidence of PW-1 and P.W.-2 has been placed before this court and a copy of the same has also been served upon the opposite parties.

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6. The learned counsel has submitted that in a case of bouncing of cheque, no allegation was made in connection with Sections 420/405 of the Indian Penal Code. There was no scope for addition of charge under the said sections. He has stated that the same is apparently an afterthought. The learned counsel has referred to the judgment passed by this Court reported in 2008(1) East Cr Cases 327 (Jhr) (Ram Awatar Ram -vs- State of Jharkhand) to submit that power under Section 216 of the Cr.P.C. cannot be exercised by improvement in evidence of the witnesses.

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7. The learned counsel appearing on behalf of the opposite parties submitted that there was enough material in the evidence for adding charge under Sections 405, 420 read with 34 of the Indian Penal Code under Section 216(1) of Cr.P.C. It is an admitted fact on record that there is only one accused in the present case i.e. the petitioner.

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8. Counsel for the Opposite Party No.2 referred to the judgment passed by the Hon’ble Supreme Court in the case of Amit Kapoor - versus- Ramesh Chander and Others reported in (2012) 9 SCC 460 to submit that the principles for exercise of power under Sections 397 and 482 have been enumerated and in the present case, only charge has been altered and therefore considering the limited scope of revisional jurisdiction in the present case, the impugned order does not call for any interference.

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9. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that in the Complaint petition filed under Section 138 of the Negotiable Instruments Act there was no allegation of any cheating or fraud or criminal misappropriation of the property. The case was simply filed on account of dishonor of cheque. The case was filed at Ranchi in view of the fact that the cheque was dishonored in Ranchi. In the Complaint, there is also a mention of the agreement between the accused and the Complainant. It further appears that the Complainant adduced his evidence before the court as the P.W.-1 after charge and so far as his wife is concerned, she adduced evidenceas P.W.-2. Both the witnesses were fully cross examined.

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10. A petition was filed under Section 216(1) of Cr.P.C. for alteration of charge for the offence under Sections 405/420 r/w 34 of the Indian Penal Code. The fact remains that the petitioner is the sole accused in the complaint case. The said petition was opposed by the petitioner. In the petition filed under Section 216(1) of Cr. P.C., it was stated that the Complainant has been cheated by the accused in connivance with other persons. Admittedly, other persons are not accused in the present case.

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11. The learned court has added the charge for the offence under Sections 405/420 read with Section 34 of the Indian Penal Code on the basis that the offence under Section 420 of I.P.C. is continuous offence of the accused for inducing the Complainant to transfer land situated in Begusarai.

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12. Though the petition filed under Section 216(1) of the Cr. P.C., was filed to add charge under Sections 405,420 read with Section 34 of the Indian Penal Code but admittedly no other person is accused in the case and the complaint case was filed the offence under Section 138 of the Negotiable Instruments Act in which no allegation of fraud/ cheating/breach of trust etc has been made .

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13. The learned court has referred to Paragraph Nos. 33, 34, 67 and 72 of the evidence of P.W.-2, wife of the Complainant and has considered the same to alter the charge and include offence under Sections 405/420 read with Section 34 of the Indian Penal Code. By observing that there is material in the evidence for adding charge under section Sections 405, 420 IPC read with Section 34 of the Indian Penal Code without considering the fact that there is no other accused in the case and there is no direct link or nexus with the ingredients of the alleged offence as stated in the complaint where no such allegation was made.

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14. This Court is of the considered view that when no other person is accused in the Complaint case, alteration of charge against the petitioner under Sections 405,420 IPC read with Section 34 of the Indian Penal Code will certainly cause great prejudice to the petitioner. This Court is of the view that the complainant has not made any allegation of fraud or cheating or breach of trust in the complaint petition and through his evidence, he has tried to improve his case and has tried to enlarge the scope of the criminal case. This is over and above the fact that the allegations in connection with Sections 420 and 406 of IPC are essentially related to sale and purchase of land and/or agreement related to landed property situated at Begusarai.

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15. In view of the aforesaid facts and circumstances, this Court is of the considered view that the impugned order dated 01.10.2019

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Binit

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passed in Complaint Case No.1105 of 2016 cannot be sustained in the eyes of law and the same is hereby quashed. Accordingly, this criminal revision is allowed.

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16. Since the case under Section 138 of the Negotiable Instrument Act is pending since 2016, the learned court concerned is directed to expedite the disposal of the Complaint case and both parties are directed to co-operate for early disposal of the case.

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17. Pending I.A. if any, is closed.

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18. Let this order be communicated to the court concerned through FAX.

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(Anubha Rawat Choudhary, J.)

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Santosh Rai v. the State of Jharkhand

Case brief

What is this about?

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Santosh Rai v. the State of Jharkhand

Case brief

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