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2001 DIGILAW 3 (PNJ)

Sunita Sood v. State Of Punjab

2001-01-03

K.S.KUMARAN

body2001
Judgment K.S.Kumaran, J. 1. By this common order, I dispose of these two petitions - Criminal Misc. Nos. 25303-M and 31851 of 2000 filed under Section 438 Cr.P.C. for grant of bail in anticipation of arrest to the petitioners in these petitions with reference to F.I.R. No. 153 dated 2.7.2000 under Section 380, 411, 420, 467, 468, 471 and 120-B I.P.C. (on the complaint lodged by Sham Sunder) registered at Police Station City, Moga. 2. The material allegation in the F.I.R. is that complainant-Sham Sunder has been running business under the name and style M/s Sham Sunder and Co. at Moga as proprietor, while M/s Shoe World, and M/s Sham Sunder are sister concerns thereof. According to the complainant, Hira Lal was employed as a Manager with Sham Sunder and Co. at Moga, but being a confidant of the complainant, he was attending to the bank transactions of all the three firms. The complainant has alleged that Hira Lal was handed over cheque books of all the three firms containing signed blank cheques. It has further been alleged by the complainant that Vishal Madan, the son of the complainant, entrusted Rs. 2,90,000/- on 31.5.1999 to Hira Lal for depositing the same in the Bank, but Hira Lal has misappropriated the same, with regard to which Vishal Madan has lodged F.I.R. No. 57 dated 4.6.1999 at Police Station Kotwali, Ludhiana under Section 408 and 381 I.P.C. against Hira Lal. The complainant has alleged that Hira Lal who was arrested in that case had admitted during the course of investigation not only to the passing of the said amount to the 2nd petitioner-Vijay Kumar Sood, but also to have given certain stolen signed bank cheques to the 2nd petitioner-Vijay Kumar Sood. 3. According to the complainant, Sunita Sood (wife of Vijay Kumar Sood) and Vijay Kumar Sood (petitioners 1 and 2 herein) and Jagtar Singh have each filed a complaint under Section 138 of the Negotiable Instruments Act, on the basis of the three cheques alleged to have been issued by the complainant or his wife Rani. The complainant has alleged that these cheques are forged and fabricated documents, but have been used as genuine ones by filing the complaints, under Section 138 of the Negotiable Instruments Act, mentioned above. The complainant has alleged that these cheques are forged and fabricated documents, but have been used as genuine ones by filing the complaints, under Section 138 of the Negotiable Instruments Act, mentioned above. According to the complainant, Vijay Kumar Sood, Sunita Sood, Hira Lal, Jagtar Singh and Sunil Kumar have entered into a criminal conspiracy to forge these cheques to cheat the complainant and his wife. The complainant has further alleged that Hira Lal who had committed theft of these 3 cheques, has passed on them to Vijay Kumar Sood and others for the above said purpose. 4. Similarly, Ajay Kumar, the petitioner in Cr. M. No. 31851-M of 2000 is also alleged to have used one of the forged cheques mentioned above and filed a complaint under Section 138 of the Negotiable Instruments Act against Sudershan Rani, the wife of the complainant. Although the name of Ajay Kumar has not been mentioned in the F.I.R., it is claimed that in the statements of Sham Sunder and Sudershna Rani recorded subsequently during investigation the name of Ajay Kumar has been mentioned. 5. Therefore, all these petitioners filed applications before the Sessions Court, Moga for bail in anticipation of arrest and their petitions have been dismissed by the learned Additional Sessions Judge, Moga. That is why Ajay Kumar has filed Cr. M. 31851-M of 2000, while the other three petitioners have filed Cr. M. 25303-M of 2000 for the same relief. I have heard the learned counsel for the petitioners, State and the complainant and perused the records on file. 6. The learned counsel for these petitioners contends that petitioners-Sunita Sood, Vijay Kumar Sood and Ajay Kumar have filed separate complaints under Section 138 of the Negotiable Instruments Act against Sudershna Rani wife of Sham Sunder on the basis of the cheques issued in their favour. Jagtar Singh has also filed a similar complaint against Sudershna Rani on the basis of a cheque. The complaints by Vijay Kumar Sood and Sunita Sood have been filed in July, 1999, while that of Jagtar Singh has been filed on 11.9.1999 and that of Ajay Kumar has been filed on 9.5.2000. The summoning orders on the complaints by Vijay Kumar Sood and Sunita Sood have been passed on 13.11.1999. The summoning order on the complaint of Ajay Kumar has been passed on 20.5.2000. The summoning orders on the complaints by Vijay Kumar Sood and Sunita Sood have been passed on 13.11.1999. The summoning order on the complaint of Ajay Kumar has been passed on 20.5.2000. The learned counsel for the petitioners also points out from the complaints of Vijay Kumar Sood and Sunita Sood that before lodging those complaints under Section 138 of the Negotiable Instruments Act, they had sent a legal notice dated 29.6.1999. Pointing out these factors, the learned counsel for the petitioners contends that it is only after the complaints lodged under Section 138 of the Negotiable Instruments Act and the summoning orders mentioned, that the present complainant-Sham Sunder has lodged the present F.I.R. alleging that Hira Lal had stolen the signed blank cheques and handed over them to others also, that all of them conspired together, forged and fabricated the cheques and filed the complaints under Section 138 of the Negotiable Instruments Act. He contends that when the proceedings under the complaints lodged by the petitioners under Section 138 of the Negotiable Instruments Act are still pending, the present F.I.R. in question has been registered as if those cheques are forged and fabricated documents. The learned counsel for the petitioners contends that if these petitioners had used the forged or fabricated cheques and had filed the complaints under the Negotiable Instruments Act, then, in view of the provisions contained in Section 195 of the Cr.P.C., it is only the Court, which ultimately gives a finding that these cheques are forged and fabricated documents, to lodge the complaint with the Court, and only such a complaint can be entertained by any Court. He also contends that under Sections 118 and 139 of the Negotiable Instruments Act, there is also a presumption that the holder of a Negotiable Instrument is a holder in due course, and that he received it in discharge of a debt or liability. He also contends that Ajay Kumar has not even been mentioned in the F.I.R. Therefore, the learned counsel for the petitioners contends that in these circumstances, these petitioners are entitled to be released on bail. 7. The learned counsel for the State, on the other hand, contends that the custody of the petitioners is necessary for interrogation and also for recovering the cheque-books. 8. The learned counsel for the complainant contends that with regard to misappropriation of Rs. 7. The learned counsel for the State, on the other hand, contends that the custody of the petitioners is necessary for interrogation and also for recovering the cheque-books. 8. The learned counsel for the complainant contends that with regard to misappropriation of Rs. 2,90,000/- Vishal Madan the son of the present complainant-Sham Sunder has lodged a complaint with the police, and the police have also registered an F.I.R. under Section 381 and 408 I.P.C. Though he contends that it is Hira Lal who had stolen these signed blank cheques and given the same to Vijay Kumar Sood and others, by using which the cheques have been forged, the learned counsel for the complainant-Sham Sunder admits that in the complaint dated 4.6.1999 under Sections 381 and 408 I.P.C., it has not been mentioned about the cheques. But the learned counsel for the complainant-Sham Sunder contends that Hira Lal, who was arrested and interrogated in the above said F.I.R. under Section 381 and 408 I.P.C. has admitted about handing over the signed blank cheques to Vijay Kumar Sood and others, and the police had also issued notices to Vijay Kumar Sood and Sunita Sood to appear before them for interrogation.The learned counsel for the complainant-Sham Sunder therefore, contends that it is only thereafter that the complaints under the Negotiable Instruments Act have been filed. But, the learned counsel for the petitioners rightly contends that the statements made by Hira Lal involving the petitioners will not be admissible against the petitioners. 9. But the learned counsel for the complainant also contends that the complainant-Sham Sunder has lodged a complaint regarding the loss of cheques and that has been entered as D.D.R. 41 dated 18.1.1999 of Police Station City, Moga and, therefore, it would have been impossible to have issued cheques on subsequent dates. But, here again, as rightly pointed out by the learned counsel for the petitioners (and conceded by the learned counsel for the complainant), D.D.R. 41 dated 18.1.1999 is only regarding the loss of cheques and not about the stealing of cheques. If Hira Lal had stolen the cheques, and that was known to the complainant, then the complaint should have been made against Hira Lal. It is not stated by the learned counsel for complainant-Sham Sunder that there is any such allegation in D.D.R. 41 dated 18.1.1999. 10. If Hira Lal had stolen the cheques, and that was known to the complainant, then the complaint should have been made against Hira Lal. It is not stated by the learned counsel for complainant-Sham Sunder that there is any such allegation in D.D.R. 41 dated 18.1.1999. 10. Therefore, from the mere fact that complainant-Sham Sunder has lodged a complaint about the loss of some cheques, it cannot now be concluded that these cheques, on the basis of which the complaints under Section 138 of the Negotiable Instruments Act have been filed, could not have been issued at all. The details of the cheques lost are also not before Court. The learned counsel for the petitioners also contends that the complainant has not given any intimation to the Bank regarding the alleged loss of the cheques. Therefore, in these circumstances, the petitioners cannot be denied bail on this account. 11. One other point raised by the learned counsel for the complainant is that even though the cheques are alleged to have been issued for very huge amounts, they were not presented for payment immediately. He contends that normally the tendency would be to present such cheques for huge amounts for encashment immediately, but in these cases, the cheques have been presented for payment after a long delay like 42 days, 70 days etc. But from the mere fact that the cheques have been presented after some delay, it cannot now be stated that these cheques are forged cheques, and therefore there was delay in presenting them for payment. 12. While issuing notice on these petitions, the petitioners have been granted interim bail, and the learned counsel for the petitioners also contends that the petitioners have joined investigation. This fact is not disputed by the learned counsel for the State or the complainant. But, they contend that the custodial interrogation of the petitioners is more useful. 13. Taking into consideration the arguments put forward by the learned counsel for both the sides, but at the same time without meaning to express any opinion on the merits of the case, I am of the view that the petitioners are entitled to be released on bail. 14. Accordingly, these petitions are allowed. 13. Taking into consideration the arguments put forward by the learned counsel for both the sides, but at the same time without meaning to express any opinion on the merits of the case, I am of the view that the petitioners are entitled to be released on bail. 14. Accordingly, these petitions are allowed. In the event of arrest of the petitioners in these petitions on the allegations found in the F.I.R. mentioned in these petitions, the petitioners are ordered to be released on bail on their furnishing sufficient surety to the satisfaction of the Arresting Officer. However, if further association of the petitioners with the investigation is necessary, the Investigation Officer shall issue notice giving sufficient time to the petitioners to join investigation, and on such notice, the petitioners shall join investigation. The petitioners are also directed to abide by the provisions of Section 438(2) Cr.P.C.