Christopher Baa vs State Of Jharkhand And Others

Gautam Kumar Choudhary, J

Instant petition has been filed for quashing the summoning order passed in Complaint Case No.4180 of 2020 whereby and whereunder prima facie case has been found to be made out under Sections 406 and 420 of the Indian Penal Code pending in the Court of learned Judicial Magistrate, 1st Class, Ranchi.

The petitioner is builder and as per the case of the complaint, he had taken friendly loan of Rs.15,00,000/- from her and her husband through cheques and bank transfer. In order to give effect to the oral agreement, buyer and seller agreement was entered between the complainant and the petitioner and her husband for the purchase of a flat in Ranchi. The said apartment was constructed on Scheduled Tribe land and the transfer of flat in any case was not permissible in view of restriction under Chota Nagpur Tenancy Act, 1908. Complainant requested the petitioner to repay the amount then he entered into a civil agreement to pay back Rs.35,00,000/- which was equivalent to prevailing market price of flat in the said apartment without intention to abide by the said agreement. The petitioner handed over the cheques of Rs.35,00,000/- out of which only Rs.5,00,000/- was encashed and remaining cheques were dishonored on account of insufficiency of fund.

The complainant had filed a case under Section 138 of the N.I. Act which is still pending before Trial Court.

It is submitted by learned counsel on behalf of petitioner that the instant complaint will not be maintainable in view of the fact that the complainant has filed one complaint case under Section 138 of the N.I. Act and on the same subject matter another criminal proceeding has been initiated against this petitioner. It is further submitted that from the averments made in the complaint, it will be apparent that Rs.5,00,000/- has already been returned by the petitioner by way of cheque. This will go to show that there was no intention of deception since inception.

Learned counsel on behalf of complainant submits a complaint case for IPC offence for cheating or criminal breach of trust is not barred even if there is a pending case under Section 138 of the N.I. Act. in view of the ratio laid in Sangeetaben Mahendrabhai Patel Versus State of Gujrat & Another, (2012) 7 SCC 621 by the counsel on behalf of complainant. It is submitted that in this case, the petitioner was convicted in a proceeding under Section 138 of N.I. Act but despite the said conviction, another complaint case was filed under Section 406 and 420 of the Indian Penal Code. The question was raised before Hon’ble Supreme Court whether the second complaint was maintainable on the same facts. It was held that the said complaint was maintainable for the reason that there could be some overlapping facts in both the cases but the ingredients of the offence under N.I. Act and I.P.C. offences are different.

Union Territory of Ladakh & Others Versus Jammu and Kashmir National Conference and Another, 2023 SCC OnLine SC 1140 wherein it has been held that In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts.

It is submitted by learned counsel on behalf of petitioner that the complainant is a teacher and the petitioner, from her very name, is evidently a member of Scheduled Tribe. It is submitted that in the agreement, the name of the owner has been specifically to be Dhania Orain and from the title, caste of the complainant is apparent that she was a member of Scheduled Tribe. Petitioner entered into the agreement to purchase the flat over the said land knowing full well about its nature. It is submitted that case of Sangeetaben Mahendrabhai Patel (supra) has been referred by the Hon’ble Supreme Court in J. Vedhasingh Versus R.M. Govindan & Others, 2022 SCC OnLine SC 2010 before a larger Bench. Before the judgment referred in Sangeetaben Mahendrabhai Patel (supra) in G. Sagar Suri & Another Versus State of U.P. & Others, (2002) 2 SCC 636, proceeding under Sections 406 and 420 of the Indian Penal Code was quashed which was initiated during pendency of the proceeding under Section 138 N.I. Act. This judgment being anterior in time to the Sangeetaben Mahendrabhai Patel (supra) will prevail.

This Court finds much force in the argument advanced on behalf of the petitioner that complainant entered into the agreement for sale for the purchase of flat over land which was tribal in nature. In the agreement of sale, the name of the land owner has been specifically mentioned with the caste name, therefore it cannot be said that the petitioner was induced into the agreement on a false representation. It further appeals that part of the friendly loan has also been repaid by cheque. For the balance amount, complainant has already initiated a criminal proceeding against the petitioner under Section 138 of the N.I. Act. In view of the law as laid down in G. Sagar Suri case (supra), a separate complaint based on the same facts for the offence under Sections 406 and 420 of the IPC for which a case under Section 138 of the N.I. Act has been filed, is not maintainable.

Under the circumstance, the impugned order as well as the entire criminal proceeding arising from Complaint Case No.4180 of 2020 is quashed.

Criminal miscellaneous petition is allowed.