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2002 DIGILAW 1185 (PNJ)

Mrs. Madhu Kalra v. Lavleen Kumar

2002-11-12

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Mrs. Madhu Kalra, petitioner seeks quashing of complaint dated 22.7.1993 (Annexure -P.1) filed under Section 138 of the Negotiable Instrucments Act, 1881 (hereinafter referred to as `the Act) by the respondent complainant against the petitioner, the summoning order dated 17.12.1993 (Annexure P.2) passed by the sub Divisional Judicial Magistrate, Mansa whereby the petitioneraccused was summoned to face trial for the above offence and the subsequent proceedings taken therein. 2. A few facts need to be stated for the adjudication of the present petition. Partnership firm of Lavleen Kumar, complainant had been engaged in the activities of commission agent at Mansa. The said partnership firm had been carrying out the business under the name and style of M/s Hem Raj and Company of which the complainant was a partner. M/s Chirag Industries, Rajpura, firm of the petitioner accused had purchased Khal from the firm of the complainant on credit basis. A sum of Rs. 1,92,394/- was due from the firm of the accused. In order to discharge the liability, the accused issued cheque No. RAJ/T- 001496 dated 18.12.1992 for Rs. 20,000/- drawn on Central Bank of India, Rajpura in the name of the firm of the complainant. The said cheque was given to the State Bank of Patiala, Mansa, banker of the complainant for encashment. The cheque in question along with another cheque bearing No. 001497 issued by the firm was dishonoured on account of insufficient funds with the remarks "the amount of the cheque exceeds arrangement" and for that reason the same was returned by the Central Bank of India along with memo dated 16.6.1993. The State Bank of Patiala, Mansa, banker of the complainant returned the cheque in question to the complainant along with pay-in-slip dated 5.6.1993 and memo dated 16.6.1993 vide its letter dated 24.6.1993. The State Bank of Patiala, Mansa also debited Rs. 20/- as expenses in this regard in the complainants account. After receipt of the said cheque, the complainant issued a notice dated 1.7.1993 to the accused calling upon her to make the payment but when the payment was not made, the present complaint was filed on 22.7.1993. In support of the allegations made in the complaint, complainant-Leveleen Kumar appeared as PW-1. After receipt of the said cheque, the complainant issued a notice dated 1.7.1993 to the accused calling upon her to make the payment but when the payment was not made, the present complaint was filed on 22.7.1993. In support of the allegations made in the complaint, complainant-Leveleen Kumar appeared as PW-1. He produced all records that is dishonoured cheque Ex.P. 1, memo Ex.P.2, intimation of dishonourment of cheque Ex.P.3, forwarding memo Ex.P.4, copy of legal notice Ex.P.5 and postal receipt Ex.P.6. Jiwan Parkash, (PW-2) partner of the firm of the complainant testified on the basis of account maintained by the firm that a sum of Rs. 1,92,394/- were due to the complainant. Sat Bhushan (PW-3), Manager of State Bank of Patiala proved the objection memo Ex.P.3 and forwarding letter Ex.P.4. Taking into account the preliminary evidence, the petitioner-accused was summoned to face trial under Section 138 of the Act. Hence, the present petition. 3. None had put in appearance on the behalf of the petitioner as well as on behalf of the respondent. 4. I had taken into consideration the grounds stated in the petition on the basis of which complainant and summoning order in question had been sought to be queshed. The first plea raised by the petitioner is that no notice in terms of the requirement of Section 138(b) of the Act was served upon the petitioner as from the perusal of the complaint (Annexure-P. 1), it is evident that no assertion whatsoever had been made in the complaint as to when the notice was sent by the respondent-complainant and received by the petitioner. Thus, it cannot be said that criminal liability had arisen after fifteen days of the service of notice. The factual position stated in the complaint by the complainant is that cheque No. 100496 dated 18.12.1992 for Rs. 20,000/- and the intimation of the bank of the complainant with regard to dishonour of the cheque was received as per letter dated 24.6.1993. It is thereafter the notice dated 1.7.1993 was sent to the accused for making the payment of the amount in question and it is thereafter the present complaint dated 22.7.1993 had been filed. The postal receipt vide which cheque was returned to the complainant had been placed on record. Even if it is taken as the date when it was received that is inconsequential at this stage. The postal receipt vide which cheque was returned to the complainant had been placed on record. Even if it is taken as the date when it was received that is inconsequential at this stage. It is not the case of the petitioner that present complaint had not been filed after fifteen days of service of notice. Another ground taken in the petition is that cheque in question was given first by the complainant to the State Bank of Patiala, Mansa and thereafter it was sent to the State Bank of Patiala, Rajpura, who presented the same to the Central Bank of India, Rajpura on 24.12.1992 which fact had not been disclosed by the respondent in the complaint. Further reference has been made to the allegations made in the complaint to the effect that the cheque in question was presented to State Bank of Patiala, Mansa on 5.6.1993. Certificate issued by the Central Bank of India, Rajpura, copy of which is Annexure -P.4, obtained by the petitioner reveals that cheque was presented to the bank on 16.6.1993 and thus it is clearly spelled out that this cheque was presented for the third time and was dishonoured but no notice was issued by the complainant in respect of the dishonour of the cheque for the first time when it was presented to the Central Bank of India, Rajpura on 24.12.1992 and for that reason, complaint deserves to be quashed. The stand taken by the petitioner can only be decided after opportunity is given to the parties to lead evidence in this regard. The question of fact raised by the petitioner as such cannot be decided in exercise of the powers vested under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). 5. It cannot be ignored that the petitioner has stated in the grounds taken that amount of the cheque of Rs. 20,000/- plus charges Rs. 20/- had been debited in the account of the firm of the petitioner in its books of account by the firm of the respondent as is evident from the copies of the account Annexures-P. 6 and P. 6/T. This part of the averment indicates that there had been running account maintained between the parties. Further the petitioner had admitted that out of the amount due to Rs. 20,000/-, Rs. Further the petitioner had admitted that out of the amount due to Rs. 20,000/-, Rs. 10,000/- was paid by the firm of the petitioner on 19.6.1993 vide voucher of the even date, copies of which are Annexures - P. 7 and P. 7/T. This part of the stand taken by the petitioner only indicates that because of the running account maintained, part payment of the amount due had been made subsequently by the petitioner to the complainant- respondent. 6. The parameters with regard to the quashing of the complaint are well settled that inherent powers under Section 482 of the Code can be exercised by the High Court so as to prevent abuse of the ptrocess of the Court or to secure the ends of justice. While exercising the powers so vested, it has to be kept in mind that the criminal proceedings should not be allowed to be scuttled at the initial stage of investigation unless it can be spelled out that no case is made out at all. Therefore, quashing of the criminal proceedings has to be done sparingly and with circumspection. 7. After going through the facts stated in the complaint and the grounds taken in the petition, it cannot be said that no case at all is made out against the petitioner-accused under Section 138 of the Act. The circumstances brought on record, as noticed earlier, do not warrant quashing of the complaint and the summoning order passed against the petitioner. Consequently, the petition is dismissed.