JUDGMENT
Bhuvaneshwar Prasad, J.
1. This application under Section 482 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) is directed against the order dated 6.10.1982 passed in T. R. Case No. 1421 of 1983 taking cognizance of the offence under Section 420 of the Indian Penal Code against the present petitioner under the circumstances mentioned below.
2. It appears that the opposite party No. 2 had filed a complaint petition (Annexure-T) dated 6.10.1982 against the present petitioner. From this complaint petition it appears that the petitioner is the owner of the house known as Roy Bungalow within Deoghar Municipality. A sum of Rs. 5,276.72 paise had fallen due from the petitioner due to non-payment of municipal taxes. On 17.4.1982 the Municipal staff was directed to disconnect the water connection of the house of the petitioner. The petitioner, who on that date was there, expressed his willingness to pay off the dues if the same is received through a cheque. Accordingly, the Municipal staff received cheque No. SB/ST-037190, dated 17-4-1982 for Rs. 5,276.72 paise drawn on United Industrial Bank Limited, Strand Road, Calcutta-1 from the petitioner who had account No. 1974 in the said Bank. This cheque was deposited on 22.4.1982 for collection by the Municipality in its account in the State Bank of India, Deoghar Branch. On 11.6.1982 the opposite party No. 2 was informed that the cheque in question was dishonoured and returned from Calcutta and a sum of Rs. 8, was charged towards the collection for this cheque.
3. In the complaint petition (Annexure-‘1’) the opposite party No. 2 further alleged that the petitioner intended to cheat and defraud the Deoghar Municipality since he insisted for making the payment only through a cheque. His intention was clear from the fact that instead of issuing a cheque oh the local Branch of a Bank he issued a cheque on the Calcutta Branch of the Bank which was subsequently dishonoured. This shows that the petitioner had no intention of making the payment of the municipal dues and he cheated the municipality by means of issuing a fake cheque simply to prevent disconnection of the water supply to his house. Accordingly, the complaint petition was filed before the learned Judicial Magistrate, Deoghar on the basis of which, as stated above, the cognizance of the offence was taken on 6.10.1982.
4. In this application it has been contended that the complaint petition does not any offence of cheating. The petitioner usually resides in the town of Calcutta though he has got his ancestral house at Deoghar which he very seldom visits. Incidentally when he was at Deoghar with his family the Municipal staff came there and threatened to disconnect his water connection on the ground that a sum of Rs. 5,276.72 paise was due from him. Since he could not spare so much of cash amount readily he offered to make the payment through a cheque. He had no idea that in his Account No. 1974 he did not have requisite amount mentioned in the cheque. On return to Calcutta when he petitioner detected this fact he sent the. money through money order to Deoghar Municipality which was received there. There is nothing to show that the petitioner had any dishonest or fraudulent intention. The payment of the municipal dues through the money order without any delay shows the bona fide of the petitioner. The petitioner happens to be a qualified architect. The payment of Municipal dues is, at best, a civil liability. This complaint petition was filed at Deoghar simply to harass the petitioner. On these grounds, amongst others, it was prayed that the impugned order be quashed.
5. The opposite party No. 2 has filed a counter-affidavit in which he has stated that the cheque of the petitioner was presented for collection to his Bank at Calcutta on 26.5.1982 though the same was issued on 17.4.1982. This shows that it was presented after more than one month after its issue. Even when this cheque was dishonoured the Municipality waited for more than four months for the realization of its dues. It was only after filing of the complaint petition and passing of the impugned order that the petitioner made payment on 30.12.1982. This shows the dishonest intention of the petitioner. It cannot be expected that the petitioner, who is an architect, did not know the amount lying to his credit in the Bank. In spite of it he issued a cheque for an amount which was not there. So far as remitting the money by the money order is concerned, this was done after about eight months.
6. On behalf of the petitioner a reply to the counter affidavit has been filed that since the petitioner is residing at Calcutta he had no information about the municipal dues with respect to Deoghar’s house. When incidentally he visited Deoghar with his family the Municipal staff demanded this huge amount of money and threatened to disconnect his water supply. Finding no alternative the petitioner issued a cheque in the municipality which, however, was of no help, since inspite of it his water supply was disconnected resulting in great hardship to him. On 14.8.1982 the petitioner made a representation to the Chairman of the Municipality to accept the municipal dues from him. The Chairman passed the order to accept the same and not to institute any case. In spite of this order and in spite of the remission of the Municipal dues starting from 29.9.1982 the complaint petition against the petitioner was filed on 6-10-1982. It is not correct to say that the petitioner was knowing that he did not have sufficient money to his credit to cover the amount of the cheque. Within two months of dishonouring of the cheque the petitioner offered to pay entire dues.
7. At the time of the hearing it has been submitted on behalf of the petitioner that he had no criminal intention to cheat. It has further been submitted that in any view of the matter the liability of the petitioner was only of civil nature and no offence under Section 420 of the Indian Penal Code is made out. In this connection, it was pointed out that the cheque was issued by the petitioner oh 17.4.1982. It was on 11.6.1982 that the opposite party No. 2 was informed by the Bank that this cheque sent to Calcutta has been dishonoured. In this connection it has been submitted on behalf of the petitioner that the return of the cheque had taken place after more than a month of its issue. It has further been pointed out that he has no dishonest intention in this regard and therefore, at best, the claim of the opposite party No. 2 was of a civil nature for which there can be no criminal liability.
8. In this connection my attention has been drawn to Annexure ‘2’ of the reply of the petitioner to the counter affidavit of the opposite party No. 2 it is a letter dated 14.8.1982 from the petitioner to the Chairman, Deoghar Municipality. In this letter a regret has been expressed on account of the fact that the cheque issued by the petitioner was dishonoured. However, he requested the Chairman to accept the dues in cash against receipt. On the margin of Annexure-‘2’ there is an endorsement of the Chairman asking the Executive Officer to accept the money tendered by the petitioner towards dues. Not only this. He passed specific order not to institute any case on account of this dues. It is, however, surprising to note that in spite of this order on the petition dated 14.8.1982 the opposite party No. 2 thought it fit to file the complaint petition on 6.10.1982. It is not clear why the opposite party No. 2 had disobeyed the specific order of the Chairman of the Municipality. Whatever may be the reason, one fact becomes clear from Annexure-‘2′ that much before the filing of the complaint petition the petitioner offered to deposit the municipal dues in cash, the moment he came to learn that his cheque has been dishonoured. This clearly goes to show want of any criminal intention on his’ part. Under this circumstance can it be said that he had intention to cheat ? On behalf of the petitioner, it has been submitted that there was some body who was vitally interested in getting this complaint petition filed against him even against the specific order of the Chairman. For this purpose the money tendered by him was not accepted in spite of the fact that the money tendered by him was not accepted in spite of the fact that the chairman had directed for accepting the amount. This clearly speaks a volume against the conduct of the opposite party No. 2.
9. In this connection my attention has been drawn to the case of Mrs. Teena Ram and Anr. v. Punam Chand Bothra, 1984 PLJR 425. In this case also a cheque-issued by the petitioners was twice dishonoured by their Bank, However, it was held that the mere dishonour of cheque cannot, in all cases, amount of commission of an offence of cheating as it does not per se constitute such an offence. For the dishonour of cheque becoming an act of cheating, it is necessary that the deception was caused on account of the cheque. In the present case also it appears that though the cheque of the petitioner was dishonoured, he tendered the money in cash to the Chairman of the Municipality much before the filing of the complaint petition. This shows his bona fides. Under this circumstance it cannot be said that he had any criminal intention of cheating.
10. In paragraph 4 of this decision it has been mentioned that Shri L. K. Bajla appearing on behalf of the opposite party had very fairly conceded before the Court that mere dishonour of cheque cannot, in all cases, amount to the commission of the offence of cheating, as it does not per se constitute such an offence. In the present case also Mr. Bajla is appearing on behalf of the opposite party No. 2, and so far as this proposition of law is concerned, he concedes to it.
11. In this connection, a reference has also been made in the case of T. K. Kanungo and Ors. v. State of Bihar and Ors. 1988 PLJR (NOC) 54 : 1988 BLJR 449. This judgment has been delivered by me while sitting in Ranchi Bench where a similar question of law had arisen. In this case also the cheque of the petitioner was returned back by his Bank with the endorsement “not arranged for”. It was held that mere dishonouring of cheque cannot, necessarily, amount to commission of offence of cheating. It is necessary that it is shown that the deception was practiced intentionally by the accused. Mere allegation of fraud or cheating in the complaint petition was held to be not sufficient for taking cognizance of offence. Accordingly, the order was quashed.
12. In the present case, as will appear from paragraph Nos. 7 and 8 of the complaint petition (Annexure-‘1’), that there is an allegation against the petitioner that he intended to cheat and defraud Deoghar Municipality and for this purpose he issued a false cheque of distant Calcutta Branch which was returned back. It has further been alleged that he had no intention of making payment of the Municipal dues. These allegations, under the facts and circumstances of this case, however, do not go very far. On behalf of the petitioner it has been submitted that he being a resident of Calcutta had naturally an account in the Calcutta Bank and, therefore, he had to issue the cheque drawn on the said amount. However, it has been pointed out that the very fact that he remitted the money by the money order even before the filing of the complaint petition clearly goes to show his bona fides. As such notwithstanding these allegations made in the complaint petition I think no cognizance in the present case under Section 420 of the Indian Penal Code could have been taken.
13. For the reasons stated above, this application is allowed and the impugned order taking cognizance of the offence against the petitioner under Section 420 of the Indian Penal Code is quashed.