IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38577 of 2006 M/S STAR CARE LTD. THRU. RATI LAL RAKA & ORS Versus STATE OF BIHAR & ANR ----------- 12 13/8/2008 Heard counsel for the parties. The petitioners in this application have assailed the order taking cognizance dated 25.4.2005 passed in Complaint Case no. 146 ( C ) of 2005 under sections 406, 420 and 120B of the Indian Penal Code. Mr Tarakant Jha, learned Senior counsel appearing on behalf of the petitioners has submitted that the order taking cognizance is bad on two grounds, namely, no part of the offences have been taken place within the territorial jurisdiction of Patna and as such the order taking cognizance is without jurisdiction. He has further submitted that on a plain reading of the complaint petition no offence under sections 406 and 420 of the I.P.C. is made out. On the other hand, Mr. S.D.Sanjai, counsel for the opposite parties has submitted that in the complaint petition it has been clearly mentioned that place of occurrence was both Patna and Mumbai and in this context it has been mentioned that part of cause of action for maintaining the complaint case has arisen in the City of Patna. With regard to second part of the submission, Mr. Sanjai had stated that the accused persons had issued two cheques dated 11.6.2004 and 14.6.2004 each of Five lacs to be drawn on H.D.F.C. Bank and when they were dishonored and returned due to insufficient funds, it cannot be said that ingredients of offences under sections 406 and 420 2 of the I.P.C. was not made out. Having considered the aforementioned submissions, this Court would find no merit in the first issue raised by the counsel for the petitioner, in as much as, the jurisdiction of Patna Court at the stage of filing of a complaint has to be looked into on the basis of the averments made in the complaint petition. Once it is found that part of the offence was also allegedly committed within the jurisdiction of the court at Patna, it cannot be said that the complaint petition could not have been filed in the court of Patna or that the court could not have taken cognizance. As with regard to the second part of the submission, this Court would hold that reading of the complaint petition would by itself make it clear that there are materials for constituting offences under sections 406 and 420 of the I.P.C. It has to be found that the allegation of cheating has been clearly mentioned in paragraph 10 of the complaint petition. It is not in dispute that such allegations emanated from the clandestine and deceitful business dealings of the petitioners and had culminated into a specific offence of cheating by way of issuance of two cheques by the petitioners dated 11.6.2004 and 14.6.2004 which on being presented by the complainant- opposite party no.2 were dishonored by the bank due to insufficient funds causing wrongful loss. In that view of the matter, element of cheating under section 420 of the I.P.C. cannot be altogether ruled out at this stage. 3 Reliance placed by the counsel for the petitioner on the judgment of the Apex Court in the case of ‘Hotline Teletubes and Components Ltd. and Ors Vs. The State of Bihar & Ors’, reported in 2005 (3) PCCR page 76 in the considered opinion of this Court would not applicable in the facts and circumstances of the present case. A bare reading of the complaint petition in this regard would make it out that certain understanding were already existing for clearing liabilities payable to the complainant while the petitioners were working in the company, namely, M/S Star Care (India) Ltd. and therefore when the liability was sought to be discharged by issuance of two cheques dated 11.6.2004 and 14.6.2004 both for a sum of Rupees Five lac each it cannot be said that have no ingredients of cheating was made out from the statements in the petition of complainant. Apparently, in the present case there are materials to show that such intention of cheating was existing at the very inception and in furtherance thereof the petitioners had issued cheques with a clear knowledge that the funds of the same were not available. On the other hand, counsel for the opposite parties with reference to the judgment of the Apex Court in the case of ‘Indian Oil Corporation Vs. N.T.P.C India Limited’, reported in A.I.R. 2006 S.C. page 2780 had stated that the test laid down for quashing of the prosecution by the Apex Court went to show that there is no requirement to reproduce legal ingredients of the offences alleged and that necessary factual 4 foundation having been laid down in the complaint would by itself is sufficient to sustain the allegation and continuance of the trial. In the opinion of this Court, the submission of the counsel for the opposite parties must be upheld in the light of law laid down by the Apex Court in the case of India Oil Corporation ( Supra ) which lays down that :- “The principles relating to exercise of jurisdiction under section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings which are relevant for the present purpose are : (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. 5 (ii)A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/ malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complainant is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. “ Considering the aforementioned aspect of the matter and exercise of power of this Court under section 482 of the Code of Criminal Procedure, this Court would refuse to exercise its jurisdiction which has to be in fact exercised sparingly and carefully in the rare of rarest 6 case. On the facts of the present case this Court cannot hold that the continuance of the criminal prosecution would be an abuse of the process of the court. Consequently, this Court does not find any merit in either of the submissions of the counsel for the petitioners and accordingly finds no error in the impugned order. In the result this application being devoid of any merit is dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar