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PATNA HIGH COURT
Ghanshyam Prasad, J.
Surendra Kumar Sharma @ Surendra Sharma
Versus
State Of Bihar
Criminal Miscellaneous No. 28738 of 2006 ;
Decided On : JANUARY 16, 2007
Abuse of Process of Court - Quashing of Cognizance Order - The court quashed the order of cognizance dated 21.10.2005 passed against the petitioner and others under Sections 406 and 420 of the Indian Penal Code, as the allegations were found to be absurd and improbable, and the prosecution was deemed to be an abuse of process of court.
Fact of the Case:
The petitioner, a Managing Director of a company, was accused of fraudulent encashment of a cheque issued as surety by the complainant. The petitioner had filed a case against the complainant earlier, and the present case was deemed to be filed with an oblique and ulterior motive.
Finding of the Court:
The court found the allegations against the petitioner to be absurd and improbable, and the prosecution to be an abuse of process of court. As a result, the application to quash the order of cognizance was allowed.
Issues: Allegations of fraudulent encashment, abuse of process of court, quashing of order of cognizance.
Ratio Decidendi: The court's decision was influenced by the absurd and improbable nature of the allegations, the admitted use of the cheque by the complainant as surety, and the perceived oblique and ulterior motive behind the filing of the present case.
Final Decision: The application to quash the order of cognizance dated 21.10.2005 was allowed, and the impugned order was hereby quashed.
1. This application under Sec. 482 of the Code of Criminal Procedure has been filed to quash the order of cognizance dated 21.10.2005 passed by Sri Sanjay Kumar, Judicial Magistrate, 1st Class,Bettiah in Complaint, Case No. 160(C) of 2005, Tr. No. 912/05 thereby and thereunder cognizance has been taken under Sections 406 and 420 of the Indian Penal Code against this petitioner and others.
2. Heard learned counsel for the petitioner. No one appeared on behalf of Opposite Party No. 2 in spite of service of notice.
3. It is submitted on behalf of the petitioner that the petitioner is a Managing Director of M/s Ankur Business Pvt. Ltd. whereas the Opposite Party No. 2 was authorised dealer of the product of the company of the petitioner. It is further submitted that in course of business transaction a cheque of Rs. 86,460.00 was given by the complainant to the petitioner which was presented in the Bank but was bounced, as a result of which the petitioner filed a case before the Chief Metropolitan Magistrate, Calcutta bearing case no. 886 of 2004. After cognizance summon was issued against the Opposite Party No. 2. Thereafter the present case was filed by the Opposite Party No. 2 with false and frivolous allegation on the basis of the same cheque which was dishonoured by the Bank. It is further sub-mitted that the prosecution of the petitioner is out and out abuse of process of court. This case has been filed with oblique and ulterior motive in order to pressurise the petitioner to withdraw the case filed earlier before the Court of Chief Metropolitan Magistrate, Calcutta (Kolkata).
4. Perused the impugned order as well as the complaint petition. On perusal of the complaint petition it appears that the allegation levelled against this petitioner and others is quite absurd and improbable. It has been admitted by the Opposite Party No. 2 in his complaint petition that he issued the cheque in favour of the petitioner only as surety but the same was used by the petitioner fraudulently for its encashment. Apparently the prosecution of the petitioner on the basis of such accusation is abuse of process of court.
5. This application is accordingly allowed and the impugned order dated 21.10.2005 is hereby quashed.
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