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2004 DIGILAW 517 (RAJ)

S. K. Gulati v. State of Rajasthan

2004-04-06

N.N.MATHUR

body2004
JUDGMENT 1. - By way of instant petition under section 482 of the Code of Criminal Procedure the petitioners seek to quash the order of the Judicial Magistrate First Class, Nathdwara dated 5.11.1999 whereby he has taken cognizance against them for offence under sections 379 and 420 Indian Penal Code. 2. I have heard learned counsel for the parties and perused the relevant record. It is submitted by the learned counsel for the petitioners that the second respondent has filed the complaint against them on the basis of which the cognizance has been taken by the impugned order with a view to preempt the filing of the complaint against him under section 138 of the Negotiable Instruments Act which is pending in the Court of Metropolitan Magistrate at Dadar, Mumbai. In order to appreciate the contentions it would be convenient to acquaint with the averments made in both the complaints. As the complaint made by the petitioners against the second respondent at Mumbai is first in time, as such it is desirable to state the facts of the said case. (1) Complaint No. 149/S/1997 - M/s. Alakh Advertising and Publicity v. M/s. Padmavati Enterprises and Ors. (2) Complaint No. 1327/S/1997 - M/s. Bombay Carbon and Metcaps Pvt. Ltd. v. M/s. Padmavati Enterprises and Ors. 3. The third petitioner herein Divya Kumar is the Director of Alakh Advertising and Publicity at Bombay. The second respondent-Karan Singh a resident of Delwara in the State of Rajasthan carrying on business at Badorlt is a Film Producer. It is alleged that the second respondent took a loan of Rs. 4,50,000/- from M/s. Alakh Advertising and Publicity. He also took loan of Rs. 6,50,000/- from M/s. Bombay Carbon and Metcaps Pvt. Ltd. Of which the second petitioner-Smt. Abharani W/o first petitioner-S.K. Gulati is the sole Proprietor. As a measure of returning the loan, the second respondent issued two cheques bearing No. 303970 dated 24.4.1995 for a sum of Rs. 3,50,000/- in favour Alakh Advertising and Publicity and second Cheque No. 303925 dated 24.4.1995 for a sum of Rs. 6,50,000/- in favour of M/s. Bombay Carbon and Metcaps Pvt. Ltd. Both the cheques were presented in the Bank by the petitioners No. 2 and 3 but the same were returned with the remarks insufficient fund. Thus legal notices were issued to the second respondent regarding dishonouring of the said cheques in the scheduled time. 6,50,000/- in favour of M/s. Bombay Carbon and Metcaps Pvt. Ltd. Both the cheques were presented in the Bank by the petitioners No. 2 and 3 but the same were returned with the remarks insufficient fund. Thus legal notices were issued to the second respondent regarding dishonouring of the said cheques in the scheduled time. But the second respondent did not choose to give any reply to the said notice. Accordingly, the complaints were presented in regard to two bounced cheques of M/s. Alakh Advertising and Publicity and M/s. Bombay Carbon and Metcaps Pvt. Ltd. in the Court.of Metropolitan Magistrate at Dadar, Mumbai which have been registered as Complaint No. 149/S/1997 M/s. Alakh Advertising and Publicity v. M/s. Padmavati Enterprises and Ors. and other Complaint No. 1327/S/1997 M/s. Bombay Carbon and Metcaps Pvt. Ltd. v. M/s. Padmavati Enterprises and Ors. In both the said complaints the second respondent have been issued summons as back as in the year 1995. Thus, the second respondent is facing trial for offence under sections 138 and 141 of the Negotiable Instruments Act in the Court of Metropolitan Magistrate at Dadar on the complaints filed by the petitioners. Criminal Original Case No. 254/1999 - Karan Singh v. S.K Gulati Pending In The Court Of Judicial Magistrate Nathdwara For Offence Under Section 379 and 420 Indian Penal Code :- 4. On 9.1.1996 the second respondent-Karan Singh filed a complaint in the Court of Judicial Magistrate First Class, Nathdwara alleging therein that in the. year 1992 the complainant came in contact with the first petitioner-S.K. Gulati during the shooting of feature film "Nain Mile Chain Kaha". He also came to know that his wife second petitioner herein namely Smt. Abharani was engaged in Film Industry at Delhi having the Head Office at Bombay. He was also impressed by the son the third petitioner namely Divya Kumar. The complain- ant decided to take him as a Hero in his another film namely "Pathrilla Rasta". In that connection they visited Delwara in August, 1992. They stated at the residence of the complainant's elder brother Bhanwar Lal Bhanawat. He had carried alongwith him the essential documents including the Cheque Book. They engaged themselves in visiting various places for selecting the locations for the shooting of the film. It is alleged that for the convenience he had signed all the cheques. They stated at the residence of the complainant's elder brother Bhanwar Lal Bhanawat. He had carried alongwith him the essential documents including the Cheque Book. They engaged themselves in visiting various places for selecting the locations for the shooting of the film. It is alleged that for the convenience he had signed all the cheques. He found that from the Cheque Book, Cheques bearing No. 303725 and 303970 were missing. On inquiry from the petitioners, they pleaded ignorance. The film "Pathrilla Rasta" did not succeed on account of which the film producer had to suffer a loss in the sum of Rs. 10-15 Lacs. It is to the surprise of the petitioner a notice was received by him issued by the petitioners herein alleging that the two cheques in the sum of Rs. 4,50,000/- and 6,50,000/- dated 24.4.1995 were bounced. It was pleaded that the complainant had not taken any loan from the said Firms and therefore, there was no question of issuing the cheques by them. It is alleged that on further inquiry it revealed that the petitioners herein had committed the theft of the said cheques in the year 1992 and misused the same. The said complaint was sent for investigation by the learned Magistrate under section 156(3) Criminal Procedure Code to the SHO, Police Station Delwara. The police registered a case for offence under section 379 and 420 Indian Penal Code and proceeded with investigation. The police after investigation found it to be case of civil nature and as such forwarded the final report. The second respondent filed a protest petition on the basis of which by the impugned order the learned Magistrate while rejecting the final report submitted by the police has taken cognizance against the petitioners for offence under sections 379 and 420 Indian Penal Code. 5. From the narration of facts of both the case it emerges that at the instance of the petitioners herein, the second respondent is facing trial in the Court of Metropolitan Magistrate at Dadar, Mumbai for offence under section 138 and 141 of the Negotiable Instruments Act. It also appears that the second respondent had taken a huge loan from the petitioners. It is also not in dispute that the cheques which are subject matter of the criminal case pending in the Court at Dadar are signed by the second respondent. It also appears that the second respondent had taken a huge loan from the petitioners. It is also not in dispute that the cheques which are subject matter of the criminal case pending in the Court at Dadar are signed by the second respondent. It is surprising that the two cheques from the Cheque Book were stolen as back as in the year 1992 but it was never reported to the police and the complaints were filed in the Court as late as in the year 1996 and particularly after the petitioners initiated prosecution against him. In these circumstances the police rightly arrived at the conclusion that it was purely a matter of civil nature. It further appears that the instant complaint has been filed by the second respondent with the ulterior motive for wreck vengeance and to preempt the filing of the criminal complaints against him under section 138 of the Negotiable Instruments Act. The Apex Court has given a caution to the magistracy in Punjab National Bank v. Surendra Prasad reported in 1993 Supp(1) SCC page 499 that the Court at the stage of issuing process should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration so as to ensure that issuing of process of the Court is not abused as an instrument of oppression or needless harassment. The similar view has been taken by the Apex Court in Sunil Kumar v. Escorts Yamaha Motors Ltd. reported in (1999) 8 SCC page 468 : 1999 Cr. L.R. (SC) 790 . The facts in the said case are more close to the instant case. In the said case also it was found that the subsequent FIR was lodged to preempt the filing of the criminal complaint against the informant u/s.138 of the Negotiable Instruments Act. The High Court quashed the FIR in exercise of powers under section 482 of the Code of Criminal Procedure. The Apex Court held that the High Court was well within its power in quashing the FIR as otherwise it was tantamount to an abuse of the process of the Court. The High Court quashed the FIR in exercise of powers under section 482 of the Code of Criminal Procedure. The Apex Court held that the High Court was well within its power in quashing the FIR as otherwise it was tantamount to an abuse of the process of the Court. The attendant circumstances in the instant case indicate that the second respondent has filed the instant complaint with an ulterior motive to preempt the filing of the criminal complaint against him under sections 138 and 141 of the Negotiable Instruments Act which is pending in the Court of Metropolitan Magistrate at Dadar, Mumbai. Even taking the allegations made in the complaint on its face value it does not satisfy the essential ingredients of offence under sections 379 and 420 Indian Penal Code. In these facts and circumstances of the case to continue the criminal proceedings under the impugned order against the petitioners in the Court of Judicial Magistrate, Nathdwara tantamounts to an abuse of the process of the Court. Thus, it is considered fit case to interfere with the proceedings pending in the Court of Judicial Magistrate First Class, Nathdwara to prevent the abuse of process of the Court by quashing the same. 6. Consequently, the petition is allowed. The order of the judicial Magistrate First Class, Nathdwara dated 5.11.1999 taking cognizance against the petitioners for offence under section 379 and 420 Indian Penal Code is quashed and set aside.Petition allowed. *******