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2001 DIGILAW 1056 (PNJ)

Sanjay Garg v. Som Nath Singla

2001-09-27

NIRMAL SINGH

body2001
Judgment Nirmal Singh, J. 1. This is a petition under Sec.482 Cr. PC for quashing complaint dated 14.6.1999 (Annexure P-l) filed by the respondent under Sec.138 of the Negotiable Instruments Act (for short the act) and the summoning order dated 15.6.1999 (Annexure P-2) passed by the learned Judicial Magistrate Ist Class, chandigarh. 2. The facts of the case are that respondent filed a complaint under Sec.138 of the Act on the ground that respondent advanced financial help to the petitioner to the tune of Rs.1 lac in the month of January, 1999 and the petitioner in token of refund of the amount, issued two cheques to the respondent bearing Nos.62747 dated 18.3.1999 for Rs.10.000/- and 62748 dated 25.3.1999 for Rs.10,000/- payable at Times Bank, Sector 7, Panchkula. It was further averred that cheque No.62748 dated 25.3.1999was encashed and in sending the information to the Registrar of Companies about the change in the Board of Directors though Sec.303 of Companies Act contemplates the outer limit within which the change has to be intimated to the Registrar, and also contemplates a fine being imposed for every days delay in failing to intimate the change in Directorship, are all matter of evidence to be adduced in the cases. Therefore it is for the petitioenr to establish, to the satisfaction of the trial Court, that in fact he ceased to be the Director of Al Company by the date of issuance of cheques, and so he is not liable to be prosecuted. Therefore on the basis of Form No.32 filed by the petitioner the proceedings in the C. Cs against him cannot be quashed. 5. The fact that in another case filed against the petitioner proceedings therein were quashed in Crl. P. No.2099 of 2001 dated 26-4-2002 is not a ground, in the circumstances stated, above, to quash the proceedings against the petitioner. Hence the petitions are dismissed. cheque No.62747 dated 18.3.1999 was returned unpaid vide bank memo No.10.5.1999. 3. The case of the petitioner is that respondent approached the petitioner for a loan of Rs.10,000/- as he was known to him. Petitioner issued Cheque No.62747 dated 18.3.1999 for Rs.10,000/-. Hence the petitions are dismissed. cheque No.62747 dated 18.3.1999 was returned unpaid vide bank memo No.10.5.1999. 3. The case of the petitioner is that respondent approached the petitioner for a loan of Rs.10,000/- as he was known to him. Petitioner issued Cheque No.62747 dated 18.3.1999 for Rs.10,000/-. The reipondent again approached the petitioner on 24.3.1999 and stated that cheque No.62747 dated 18.3.1999 was misplaced or lost by him and thus another cheque for the same amount be issued, as a result of which cheque No.62748 dated 25.3.1999 was given to the respondent by the petitioner. The petitioner sent intimation to the bank to stop the payment of cheque No.62747 dated 18.3.1999. 4. Petitioner has pleaded that the complaint, Annexure P-l does not disclose commission of any offence. The respondent-complainant has not disclosed intentionally and wilfully the date of issue of cheque No.62748 in the complaint as well as in the legal notice. Even it has not been disclosed as to when the period of 15 days as envisaged under Sec.138 of the Act expired, giving cause to the respondent to file a complaint before the Judicial Jvlagistrate. The notice was never received by the petitioner. Therefore, the notice is illegal and liable to be quashed alongwith all consequent proceedings flowing therefrom. 5. The respondent filed reply and raised preliminary objection that the petition discloses the disputed question of facts which can only be determined after evidence isled in the trial Court. On merits, all the averments made in the petition was controverted. 6. It was also pleaded that notice dated 20.5.1999 issued to the petitioner is legal and valid one. The said notice was sent under the postal registered receipt and UPC dated 21.5.1999 and the petitioner instead of having 15 days time of make the payment of the cheque did not make the payment of the cheque in question. It was further pleaded that the complaint has been rightly filed. 7. Mr. Rajneesh Narula, learned counsel for the petitioner submitted that complainant has filed the complaint on the ground that cheque issued by the petitioner has bounced due to insufficient funds. He further submitted that there were sufficient funds in the account of the petitioner, when the cheque was returned by the bank so no offence is made out. 7. Mr. Rajneesh Narula, learned counsel for the petitioner submitted that complainant has filed the complaint on the ground that cheque issued by the petitioner has bounced due to insufficient funds. He further submitted that there were sufficient funds in the account of the petitioner, when the cheque was returned by the bank so no offence is made out. He pointed out that the offence under Sec.138 of the Negotiable Instruments Act is made out if there are insufficient funds in the account of the person who issued the cheque. He further submitted that notice Annexure P/3 alleged to have been served upon the petitioner, was never served upon the petitioner. He contended that the respondent has pleaded in the complaint that the cheque was returned unpaid on 18.5.1999 that the payment was stopped by drawer whereas in the notice annexure P-3 served upon the petitioner, a contradictory stand has been taken that the cheque was returned unpaid due to insufficient funds. The payment has been stopped by the petitioner, as the petitioner in lieu of cheque No.62747 dated 18.3.1999 has given another cheque dated 25.3.1999 which was presented in the bank on 26.3.1999. He pointed out that when cheque No.62748 dated 25.3.1999 was issued to the "respondent, he made a statement before the- petitioner that cheque No.62747 dated 18.3.1999 has been misplaced. He further submitted that if cheque No.62747 dated 18.3.1999 was with the petitioner on 26.3.1999 then he must have presented the cheque for its encashment. So, from the facts no offence is made out against the petitioner rather respondent has committed forgery with the petitioner. 8. On the other hand, Mr. Anuj Raura, learned counsel appearing for respondent submitted that from the averments made in the petition, there are disputed facts, visa-vis, whether the petitioner issued cheque on the statement of the respondent that the earlier cheque issued by the petitioner has been misplaced or lost, which can not be decided in a petition filed under Sec.482 Cr. RC. He further submitted that notice issued to the petitioner is legal and valid one. He further submitted that petitioner has not denied the signatures on the cheque. Once the petitioner has admitted the signatures on the cheque, then the burden is on the petitioner to rebut the presumption that he is not liable to pay the amount and this presumption can be rebutted by leading evidence. He further submitted that petitioner has not denied the signatures on the cheque. Once the petitioner has admitted the signatures on the cheque, then the burden is on the petitioner to rebut the presumption that he is not liable to pay the amount and this presumption can be rebutted by leading evidence. Reliance in this regard has placed upon K. Bhaskaran V/s. Sankaran Vaidhyan balan, 1994 (4) RCR (Cri.) 309, Joginder Pal Vohra u. State of Haryana, 1997 (4)RCR (Criminal) 584, M/s. Shivalik Fibres Put. Ltd. V. State of Punjab, 1998 (3) RCR (Criminal) 634; Chand Rattan Newar u. Shayam Rattan Newar, 2000 (4) RCR (Cri.)416, Suman Sethi u. Ajay Kumar Churiwal.2000 (1) RCR (Criminal) 780. I have given my thoughtful consideration to the submissions made by learned counsel for the parties. 9. The Apex Court in State of Haryana and Others V/s. Ch. Bhajan Lal and Others, air 1992 SC 604 has laid down guidelines where High Court can exercise inherent powers under Sec.482 Cr. RC. to prevent the abuse of process of law. However, this should be done sparingly and in rarest to rare cases. The guidelines are as under: (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima fade constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156 (1) of the Code except under an order of a Magistrate within the purview of S.155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR on complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FI. R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155 (2) of the Code. (5) Where the allegations made in the FI. (4) Where the allegations in the FI. R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155 (2) of the Code. (5) Where the allegations made in the FI. R or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the. proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with matafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. " 10. In view of the above judicial precedent, and from perusal of the FIR/complaint, no prima facie offence is made out and the complaint/fir is the result of ulterior motive to humiliate and harass the accused, therefore, the FIR is to be quashed. 11. Now adverting to the facts of the case, it is clearly established that the complaint has been filed with ulterior motive to humiliate and harass the petitioner and tp recover the amount of Rs.90,000/- which the complainant alleged that he has to recover from the petitioner. 12. The respondent presented cheque No.62747 dated 18.3.1999 and the bank vide memo dated 26.3.1999 returned the cheque unpaid with the remarks that the payment stopped by drawer. But in the notice, respondent has mentioned that it was returned unpaid due to insufficient funds. So, the respondent has taken contradictory stand in the notice as well as in the complaint. Therefore, the notice is not valid as the petitioner has to rely upon the averments made in the complaint as well as in the notice. The notice should be in consonance with the facts of the cheque whether the cheque was returned with the remarks due to insufficient funds. Therefore, the notice is not valid as the petitioner has to rely upon the averments made in the complaint as well as in the notice. The notice should be in consonance with the facts of the cheque whether the cheque was returned with the remarks due to insufficient funds. If the cheque has been returned with the remarks payment stopped by drawer then no offence is made out as it has been held in K. K. Sidharthan V/s. T. P. Praveen, 1996 (SC2) GJX 1581 SC that when the cheque had been presented by drawee, after the instruction of the stop payment issued by the drawer" and had become known to the drawee and the same were returned unpaid with the endorsement " payment countermanded by the drawer" no offence under Sec.138 of the Negotiable Instruments Act is made out. 13. The petitioner in paragraph 4 has pleaded as under : "4. That the respondent-complainant approached the petitioner for a loan of Rs.10,000/- as he was known to him. Thus, cheque No.62747 dated 18.3.1999 for rs.10,000/- was issued. But, the respondent with a clever motive approached the petitioner on 24th March, 1999, and stated that cheque No.62747 has been misplaced or lost by him and thus another cheque for the same amount may be issued. Resultantly, on the statement made by the respondent that the cheque No.62747 issued by the petitioner was lost/misplaced by the respondent, a fax message was given to the banker to stop payment of cheque No. .62747 and second cheque No.62748 amounting to Rs.10,000/- was issued in favour of the respondent which was encashed on 26.3.1999. However, the accounts statement of the petitioner showing that there were sufficient funds in his account, will be shown at the time of hearing of this petition. " In reply to para 4, the respondent has pleaded as under: "that the contents of Para No.4 of the petition are wrong, false hence denied. The petitioner has concocted the story in the present petition. The entire petition speaks about the existence and non-existence of the facts which can only be ascertained after the evidence is lead by the parties to the case in the trial Court. The honble Court may not kindly exercise the inherent power under Sec.482 of the code of Criminal Procedure in view of the existence of disputed question of facts. The entire petition speaks about the existence and non-existence of the facts which can only be ascertained after the evidence is lead by the parties to the case in the trial Court. The honble Court may not kindly exercise the inherent power under Sec.482 of the code of Criminal Procedure in view of the existence of disputed question of facts. The plea of the petitioner that the respondent had approached the petitioner to take a loan of Rs.10,000/- becomes falsifies in view of the fact that the respondent on 9.2.1999 had advanced an amount of Rs.1.00 lac after withdrawing the same from his saving bank account. No.4606 maintained with Allahabad Bank panchkula Branch, Haryana on that very day itself i. e.9.2.1999. Thus the plea of the petitioner that respondent had requested to advance an amount of Rs.10,000/- as loan becomes falsifies and this plea is specifically being denied by the respondent. The respondent is also annexing the true/original copy of his bank statement of account as Annexure R-l evidencing the withdrawal of an amount of Rs.1,01,000/-on 9.2.2000. Availability of funds in the bank account of the petitioner does not adversely affect the case of the respondent/claimant. " 14. The respondent has not denied in the reply that he has not made a statement before the petitioner that cheque No.62747 dated 18.3.1999 issued by the petitioner had lost. There is no averment of the respondent that there was insufficient funds in the account of the petitioner. So, from the averments, it is clear that there were sufficient funds in the account of the petitioner and he has also sent a fax message to the bank to stop payment of cheque No.62747 dated 18.3.1999. The respondent neither in the notice nor in the complaint has mentioned the date of cheque No.62747 intentionally and deliberately. 15. At the hearing, learned counsel for the respondent has failed to explain why the respondent has not given the date of cheque No.62748 in the complaint as well as in the notice. This show mala fide intention of the respondent. From the facts it is clear that cheque No.62748 dated 25.3.1999 has been issued by the petitioner on the statement of respondent that cheque issued on 18.3.1999 has been lost and the cheque issued on 25.3.1999 has been encashed on 26.3.1999. This show mala fide intention of the respondent. From the facts it is clear that cheque No.62748 dated 25.3.1999 has been issued by the petitioner on the statement of respondent that cheque issued on 18.3.1999 has been lost and the cheque issued on 25.3.1999 has been encashed on 26.3.1999. It has been noticed above that when cheque dated 18.3.1999 was presented in the bank , it has been returned with the remarks payment stopped by the drawer and not due to insufficiency of funds, so the version given by the petitioner is correct that he has issued cheque No.62748 dated 25.3.1999 only on the saying of respondent that cheque No.62747 dated 18.3.1999 has been lost. 16. At the hearing, learned counsel for the respondent was asked why the respondent has not presented the cheque dated 18.3.1999 in the bank, the learned counsel submitted that the complainant was busy in his business and, therefore he could not go to the bank to present the cheque and the other explanation given by the learned counsel is that it is not necessary that the complainant should first present the cheque dated 18.3.1999 and then should present the cheque given later on. 17. The explanation given by the learned counsel for the respondent is not plausible. If the respondent is busy in his business as stated by the learned counsel for the respondent, then he would not have gone to the bank for presenting cheque No.62748 dated 25.3.1999 and the said cheque has been encashed on 26.3.1999. Once the respondent has gone to encash the cheque, it shows that the respondent, intentionally and deliberately, kept concealed cheque dated 18.3.1999 and subsequently presented the cheque for its encashment but the same was returned with the remarks payment stopped by the drawer. 18. The judicial precedent cited by the learned counsel for the respondent is not relevant to the facts of the present case. From the facts of this case, it has been established that the respondent has filed this complaint with the malafide intention to harass the petitioner and to misuse the process of law. 19. For the reasons recorded above, this petition is accepted and the complaint dated 14.6.1999 and the subsequent proceedings are quashed.