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2008 DIGILAW 2181 (PNJ)

Sant Kumar v. State of U. T.

2008-12-22

M.M.S.BEDI

body2008
JUDGMENT M.M.S. Bedi, J 1. Petitioners Sant Kumar, his son Hari Krishan, Randhir Singh, Jarnail Singh and Parkash Chander Pandey have sought the concession of pre-arrest bail through the instant petition under Section 438 Cr.P.C. in a case of beach of trust and cheating, registered against them at the instance of Sarwar Khan claiming himself to be the President of Society against Exploitation by Money Lenders. 2. As per the allegations in the complaint, the petitioners have indulged in the illegal business of money lending, defrauding and cheating innocent and poor persons by misusing the blank documents. Petitioners 1 and 2, Upma Kakkar and Kanta Devi have been doing the business of money lending under different names. It is alleged that the modus operandi of the petitioners is that at the time of advancing loan, a large number of blank papers are got signed from the borrowers, who in general are employees of Government and semi Government Corporations, along with a number of documents from the guarantors. In case of failure of innocent persons for not acceding to the illegal and unethical demands, the financiers misused the blank documents by forging the same to file different cases against them. Inspite of the fact that the borrowers have cleared the outstanding amount, the petitioners 1 and 2 involved them in false cases in connivance with Jarnail Singh, Randhir Singh and Parkash Chander Pandey, who have filed a number of cases against the innocent persons, on the basis of false and frivolous documents. This practice has been going on in Chandigarh for the last money years. The said three persons have shown their wrong addresss in different complaints. On making inquiries under the R.T.I. Act it has transpired that the petitioners are not paying any income tax. On making similar inquiry from the District Court, Chandigarh, approximately 400 cases are found pending having been filed by the above said persons against the various citizens by misusing the blank documents i.e pronotes, blank cheques, blank loan bonds and other documents. On earlier occasion the matter had been reported to SSP chandigarh by one Bir Swaroop of Chandi Mandir by making a complaint on 8.7.2003 against the petitioners. Similarly, another complaint dated 11.4.2007 was lodged with the SSP Chandigarh for registration of FIR against the petitioners for having forged and misused the documents by giving their wrong addresses. 3. Mr. On earlier occasion the matter had been reported to SSP chandigarh by one Bir Swaroop of Chandi Mandir by making a complaint on 8.7.2003 against the petitioners. Similarly, another complaint dated 11.4.2007 was lodged with the SSP Chandigarh for registration of FIR against the petitioners for having forged and misused the documents by giving their wrong addresses. 3. Mr. H.S.Gill, Mr.P.S.Hundal, Sr.Advocates and Mr.Vohra, Advocate appearing for the petitioners, contended that the there are vague allegations in the complaint regarding the misuse of any blank documents or forging of the documents and no offence is made out against the petitioners. All the petitioners are income tax assessees having PAN cards. The complainants, being borrowers having taken loan from the petitioners have issued cheques for return of the loan amount. Complaints u/s 138 of the Negotiable of Instruments Act ( for short 'the Act') are pending in different courts. The complainants have lodged the present FIR with an objective to pressurise the petitioners to waive off the loans advanced by them with an objective to cause wrongful loss to the petitioners. As the cheques issued by the complainant group stand already dishonoured, it does not lie in their mouth to contend that any blank documents were got signed by the petitioners. Since the complainants have failed to fulfill their obligation to discharge the civil liability, they have, with an intention to side track the issue and harass the petitioners, got registered a case as a counter blast to the civil suits, which were filed against Sarwar Khan and other persons, who stood as guarantor to two loan transactions. The other persons, whose statements have been recorded by the police owe money to the petitioners. 4. In order to substantiate the arguments, two complaints filed by Randhir Singh (petitioner No.3) against Sarwar Khan u/s 138 of the Act have been placed on record as Annexures P-6 and P-7.A copy of the civil suit for recovery of Rs.248420/-on account of principal and interest, on the basis of a dishonoured cheque, filed against Sarwar Khan etc., has been placed record as Annexure P-8. Copies of the plaints in suits for recovery against the PWs, filed by the petitioners, have also been placed on record. 5. Copies of the plaints in suits for recovery against the PWs, filed by the petitioners, have also been placed on record. 5. Mr.Hundal, Senior Advocate has contended that when a blank cheque is issued giving an authority to the holder to fill the blank cheque and use the same, the holder of the cheque can fill in the said cheque for the purpose of effecting the recovery and for initiating proceedings u/s 138 of the Act by presenting the same to the bank. In support of his contention, he has placed reliance on Moideen vs Johny 2006(4) RCR (Criminal) 566 and Purushottam vs Manohar K. Deshmukh & Anrs 2007(2) RCR (Criminal) 353. 6. Learned counsel for the petitioners have also referred to certain authorities of Hon'ble Supreme Court and of this court pertaining to the principles and guidelines for grant of pre-arrest bail to contend that when the case of the prosecution is based upon documents, which are already in possession of the complainants, the police custody is not required and also that the allegations in the FIR have been levelled to achieve an oblique motive and chances of accused not likely to flee from the process of law, anticipatory bail should be granted to them. Mr.Hundal has also referred to the judgment of the Supreme Court in Joginder Kuma vs State of U.P. 1994 AIR (SC) 1349, in context to the Articles 21 and 22(1) of the Constitution of India in support of his contention that police cannot make arrest merely because it is lawful and police has power to do so, the police officer should be able to justify the arrest apart from the power to arrest. 7. For the above said principles, reliance has been placed on Gurbaksh Singh Sibbia vs State of Punjab 1980(2) SCC 565, Lehri Singh vs State of Haryana 2004(1) RCR (Criminal) 44. 8. On the other hand, the petition for pre-arrest bail has been vehemently opposed by the learned counsel for U.T. as well as counsel for the complainants. During the pendency of this petition, a team of police officials was constituted for in depth investigation into the matter. 8. On the other hand, the petition for pre-arrest bail has been vehemently opposed by the learned counsel for U.T. as well as counsel for the complainants. During the pendency of this petition, a team of police officials was constituted for in depth investigation into the matter. The entire material gathered by the investigating agency and the material produced by the complainants' counsel has been carefully perused by me in this case to determine whether the incident of criminal liability accruing from the nature of the allegations levelled against the petitioners and from the material, which has been gathered by the investigating agency till date, is there. Superficially the present case appears to be only a tussle and tug of war between the money lenders and the borrowers but a close scrutiny of the entire record reflects that it is a glaring instance of abuse of the process of the law and an intelligent use of the various legal remedies available with a money lender to use his fiduciary relationship with the borrower. No doubt petitioners 1 and 2 are money lenders having given money to the complainants. The statement of Naresh Kumar of Chandi Mandir that he given 24 blank cheques to petitioner No.1 against a loan of Rs.1.00 lac repayable on monthly installment of Rs.6500/-has been perused. As per his statement he had paid the entire loan but his blank cheques were not returned to him. One of those cheques has been used for prosecution of the said PW for not having discharged his liability to the extent of Rs. 77000/-. 9. Sarwar Khan in his statement also states that he had been taking loans from him with effect from the year 1992. He had taken a loan in the year 2001 for a sum of Rs.65,000/-against an affidavit, pronote agreement and few blank cheques of Syndicate Bank, panchkula. The money was to be returned in equal installments of Rs.3325/-each per month. Though he had returned the money but four blank cheques were used in proceedings u/s 138 of the Act. 10. PW Baj Singh had also taken two loans from the petitioner Sant Kumar for a sum of Rs. 2.00 lacs and 2.50 lacs against 49 blank cheques of Punjab State Cooperative Bank, Chandigarh and other documents and promissory note. Thereafter, he was approached through Jarnail Singh. 10. PW Baj Singh had also taken two loans from the petitioner Sant Kumar for a sum of Rs. 2.00 lacs and 2.50 lacs against 49 blank cheques of Punjab State Cooperative Bank, Chandigarh and other documents and promissory note. Thereafter, he was approached through Jarnail Singh. The blank cheques were used against him for effecting recovery despite the fact that he had returned the money. 11. PW Bhupinder Singh had also taken a loan of Rs.50,000/-, repayable in 24 installments against 17 blank cheques. Despite the amount having been repaid, he was involved in three complaints by misusing all the three blank cheques. 12. PW Varinder Mohan claims that he had taken a loan of Rs.40,000/-in the year 2001 against 48 blank cheques and other documents as security. Through he had returned the money but Hari Krishan had failed to return the blank cheques and misused the three cheques through Kanta Devi, wife of Sant Kumar, Janail Singh and Upma Kakkar. 13. Rakesh Kumar PW was also persuaded to hand over 19 blank cheques against a loan of Rs.38,000/-, repayable on monthly installment of Rs.1760/-. He claims that though he had repaid the money but the two blank cheques have been used by Sant Kumar and Kanta Devi against him. 14. PW Birmal Sarup had also taken a loan of Rs.70,000/-against 40 cheques and other documents like affidavit, pronote and agreement, repayable in monthly installment of Rs.5000/-. He claims that though the amount has been repaid but the blank cheques were withheld on the pretext that these were lying in the lockers. Similarly, in 2001 he had again taken a loan from Hari Krishan against 60 cheques but the cheques have not been returned despite the amount having been returned. One of those cheques has been used in proceedings u/s 138 of the Act filling in a sum of Rs.208733/-. 15. Statement of Surjit Kaur has also recorded during investigation. She also claims that she gave 42 blank cheques of Syndicate Bank, Sector 7, Panchkular to Hari Krishan. Though she had paid the entire amount of loan by 2004, but the cheques have not been returned. One of those cheques has been used in a cheque bouncing case. 16. Dharambir also claims that he had taken a loan of Rs.20,000/-against 10 blank cheques of Punjab State Cooperative Bank, Punjab Civil Secretariat, Chandigarh. Though she had paid the entire amount of loan by 2004, but the cheques have not been returned. One of those cheques has been used in a cheque bouncing case. 16. Dharambir also claims that he had taken a loan of Rs.20,000/-against 10 blank cheques of Punjab State Cooperative Bank, Punjab Civil Secretariat, Chandigarh. Though the entire loan had been repaid in the year 2003 but Sant Kumar did not return the blank cheques. 17. Jagbir resident of Panchkula had also taken a loan of Rs.25,000/-on 26.1.2001 from Hari Krishan, repayable with interest in 48 installments of Rs.1225/-each and blank cheques were not returned though the loan had been repaid. Hari Krishan used the two cheques in a cheque bouncing case. 18. The plea of blank cheques having been given to the petitioner has been taken by the complainants in civil proceedings as well as in proceedings u/s 138 of the Act. Few replies of the legal notices have been collected during investigation to show that the specific pleas have been taken regarding the misuser of the blank cheques by another person. This has happened in certain cases, in which Jarnail Singh had initiated proceedings u/s 138 of the Act. 19. The contents of the entire voluminous record need not be discussed in detail, which prima facie indicates that certain cheques with continuous serial numbers have been used by different petitioners though they were handed over as security of loan to one person. The details have been furnished in the shape of a chart regarding various transactions. To quote a few instances, cheques issued by Ashok Kumar with serial numbers 34130,34131 and 34120 have been used by Sant Kumar and Associates with different amounts on the same date of presentation i.e. 22.4.2003. Four cheques with serial numbers 112552,112558,112559 and 112560 alleged to have been issued by Sarwar Khan complainant, have been presented on the same date on 112.12.2003 by four different persons i.e. Jarnial Singh, Sant Kumar, Smt.Kanta Devi and Randhir Singh, respectively. Similarly, three cheques of serial numbers 61788,61789 and 61791 for different amounts, alleged to have been issued by Varinder Kumar and presented on the same date i.e 10.12.2003 in the names of three different persons i.e Randhir Singh, Kanta Devi and Upma Kakkar, respectively, have been used. 20. Similarly, three cheques of serial numbers 61788,61789 and 61791 for different amounts, alleged to have been issued by Varinder Kumar and presented on the same date i.e 10.12.2003 in the names of three different persons i.e Randhir Singh, Kanta Devi and Upma Kakkar, respectively, have been used. 20. Single instance of user of a blank cheque, signed by a person, in proceedings u/s 138 of the Act may not constitute an offence in view of the judgments in Moideen's and Puruhottam's cases (supra), cited by the learned counsel for the petitioners but it has to be considered that a cheque is a property. If the said property is handed over to another person, duly signed, in the course of commercial expediencies and the blank cheque is misappropriated or is used for a purpose for which the same had not been handed over, prima facie the same would bring the mischief under the penal provisions of Section 406 IPC. A similar question had arisen before the Hon'ble Supreme Court in the case of Suryalakshmi Cotton Mills Ltd. Vs Rajvir Industries Ltd. & Ors 2008(1) R.A.J. 183. In the said case an FIR had been lodged by the police alleging that the blank signed cheques issued in the year 2001 and 2002 had been fraudulently used by the respondent-company. The High Court had quashed the FIR exercising powers u/s 482 Cr.P.C. The Hon'ble Supreme Court had set aside the orders of the High Court holding that the investigation was not allowed to take place at all and the first information report prima facie disclosed commission of cognizable offence, the High Court should not have interfered with the investigation thereof by a statutory authority. It has been further held that a blank cheque duly signed and given by a party during commercial expediencies is permissible but filling up of the blanks in the cheque would not amount forgery but a blank cheque duly given by the complainant to the accused and misappropriation of the said cheque by the accused would clearly constitute an offence u/s 406 IPC. 21. 21. In view of the said judgment, the contention of the petitioners that blank cheques are permitted to be used by petitioners 1 and 2, who are money lenders, is acceptable but in view of the overwhelming material gathered by the prosecution indicated that prima facie the blank cheques, handed over to them, have been misappropriated for effecting exaggerated recoveries by the petitioners. This fact is prima facie apparent from the fact that 60 complaints have been filed by petitioner No.3 Randhir Singh, 72 complaints have been filed by petitioner No.4 Jarnail Singh and 33 complaints have been filed by petitioner No.5 Parkash Chander Pandey, using the cheques, which were allegedly handed over by the complainants unfilled to petitioners 1 and 2 as security to discharge their liability of laon. No doubt, it is not a stage to determine that the complainants have lodged the prosecution with an objective to pressurise the petitioners to evade their liability of repayment of loan amount or it is a case where the petitioners are bona fide pursuing the legal remedy to recover their amounts. Since the investigation is at an initial stage, it will be determined during investigation whether the petitioners had, in any manner, persuaded the complainants to sign the blank cheques with an intention to deceive them or on the basis of some misleading representation or whether there had been fraudulent or dishonest inducement on the part of the petitioners at the inception or at the subsequent stage, to warrant prosecution and punishment for cheating. 22. Taking into consideration the consistent stand of all the complainants that blank cheques had actually be delivered to the accused petitioners 1 and 2, who claim themselves to be licenced money lenders and the simultaneous denial of the said assertions by the petitioners, it appears that a fair investigation, on the basis of custodial interrogation, is necessary in the interest of justice. Merely because the complainants are alleged to be borrowers and owe money to the petitioners-money lenders, cannot at this stage considered to be a ground to form an opinion that the allegations in the FIR are absolutely false. It is not merely a case of civil liability or the criminal liability but apparently also a case of socio economic offence committed at a large scale by the petitioners. 23. It is not merely a case of civil liability or the criminal liability but apparently also a case of socio economic offence committed at a large scale by the petitioners. 23. No extra ordinary exceptional circumstancess exist for the grant of pre-arrest bail to the petitioners. 24. The petition, is, thus, dismissed. Nothing said is meant to prejudice the right of petitioners to seek regular bail. Petition dismissed.