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2010 DIGILAW 410 (UTT)

PRADEEP KUMAR v. STATE OF UTTARANCHAL

2010-06-29

PRAFULLA C.PANT

body2010
JUDGMENT By means of this petition moved under section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) the petitioner has sought quashing of the proceedings of criminal complaint case no. 73 of 2001 Mehandi Hassan vs. Pradeep Kumar, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending before the Judicial Magistrate-Ist Class, Kashipur, District Udham Singh Nagar. 2. Heard learned counsel for the parties and perused affidavit and counter affidavit. 3. Brief facts of the case are that respondent no. 2/complainant filed the criminal complaint before the trial court alleging that in respect of a deal of sale of land, the petitioner had given cheque No. 998204 dated 15.04.2001, for an amount of Rs. 75,000/- to the complainant (respondent No. 2)., When the said cheque was presented before the Bank the same was got dishonoured. On this complainant got served notice dated 08.05.2001, on the petitioner, but no payment was made by him within fifteen days. Hence, the criminal complaint was filed. 4. The trial court appears to have dismissed the criminal complaint vide order dated 08.11.2001 under section 203 of Cr.P.C. However, the complainant preferred criminal revision no. 91 of 2001, which was allowed the revision and directed the trial court to pass fresh order. Thereafter, vide order dated 23.04.2002 (copy Annexure 7 to the petition) the trial court summoned the accused (present petitioner) to face the trial in respect of offence punishable under section 138 of Negotiable Instruments Act, 1881. It appears that the petitioner then filed objection before the trial court which was also dismissed vide order dated 14.06.2004. The same was challenged before the revisional court in criminal revision no. 37 of 2004, which was dismissed vide order dated 10.05.2005. Hence this petition. 5. The impugned order dated 10.5.2005, passed in criminal revision no. 37 of 2004 shows that since the revision against the summoning order was not maintainable, nor the Magistrate had power to recall the summoning order as such no relief could be granted to the petitioner by the courts below. 6. Learned counsel for the petitioner submitted that the cheque in question was dishonoured by the Bank not on the ground of insufficiency of funds but on the ground of ‘stop payment’. Relying on the principle of law laid down in Raj Kumar Khurana vs. State (2009) 2 SCC (Cri.) 936. 6. Learned counsel for the petitioner submitted that the cheque in question was dishonoured by the Bank not on the ground of insufficiency of funds but on the ground of ‘stop payment’. Relying on the principle of law laid down in Raj Kumar Khurana vs. State (2009) 2 SCC (Cri.) 936. It is contended that since the cheque in question was not dishonoured on the ground of insufficiency of funds as such the ingredients of the offence punishable under section 138 of Negotiable Instruments Act, 1881, are not made out. However, on this ground, this Court is not inclined to interfere with the trial of the case, after the principle of law laid down by three Judges of the Apex Court in Rangappa vs. Mohan AIR 2010 SC page 1898, in which it has been held that even if the cheque is bounced on the ground of instruction ‘stop payment’ given to the Bank, the ingredients of the offence punishable under section 138 of Negotiable Instruments Act, 1881, can be shown to have been made out. Similar view has earlier been expressed by the Supreme Court in Goaplast Pvt. Lts. Vs. Sri Chico Usula D’Souza 2003 (1) Apex Court judgment page 506 & Goaplast Pvt. Lts. Vs. Shri Chico Ursula D’Souza 2004(1) Apex Court judgment page 273, and it has been held that merely for the reason that the drawer had issued instruction to the bank for stoppage of payment or informed the drawee not to present the cheque, would not preclude an action under section 138 of the Act. Therefore, the criminal complaint filed against the petitioner is not liable to the quashed on that ground. The view taken by this Court in S.C. Mathur vs. State 2010(1) UD 583 does not hold the field after the case of Rangappa (supra) decided by the three Judges of Apex Court. 7. However, in the present case apart from the above mentioned instruction, there are other facts on the record, which show that filing of criminal complaint in question is abuse of process of law. Not only the petitioner had informed the Bank about the loss of the cheque, and registered the case of cheating and forgery against the complainant (respondent no. 2) but there was report of the police that the complainant is a cheat who is facing several cases of cheating. Not only the petitioner had informed the Bank about the loss of the cheque, and registered the case of cheating and forgery against the complainant (respondent no. 2) but there was report of the police that the complainant is a cheat who is facing several cases of cheating. That too would not have been sufficient ground for interference by this Court under Section 482 of Cr.P.C., as it is a matter to be seen by the trial court whether, actually cheques was lost as alleged by the petitioner or not. But the most important fact in the present case is that even the drawee bank itself informed the drawer bank that the cheque appears to be forged one. Taking the said fact into consideration which is apparent from Annexure-2 to the petition, in the circumstances narrated above, this Court finds that the petitioner, cannot be allowed to be harassed in such criminal complaint case. 8. For the reasons as discussed above, the petition under section 482 of Cr.P.C. is allowed. The proceedings of impugned criminal complaint case no. 73 of 2001 Mehandi Hassan vs. Pradeep Kumar, relating to offence punishable under section 138 of Negotiable Instruments Act, 1881, pending before the Judicial Magistrate-Ist class, Kashipur, District Udham Singh Nagar, against the petitioner Pradeep Kumar, are hereby quashed.