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2012 DIGILAW 1175 (PNJ)

Geeta Bhushan v. Chanderparkash and another

2012-09-10

SABINA

body2012
Mrs. Sabina, J. :— Petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of criminal complaint dated 18.4.2011 (Annexure P-1); summoning order dated 18.4.2011 (Annexure P-2) and all the subsequent proceedings arising therefrom. 2. Learned counsel for the petitioner has submitted that the petitioner had no concern with the business of the firm carried on by her husband. Petitioner had been falsely involved in this case merely because she is the wife of accused Shashi Bhushan, who had issued the cheque in dispute. 3. Learned counsel for respondent No.1, on the other hand, while opposing the petition, has submitted that husband of the petitioner had not surrendered before the trial Court so far. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. 4. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” Respondent No.1 has filed the complaint against petitioner and her co-accused Shashi Bhushan (husband of the petitioner) (Annexure P-1) under Section 138 of the Negotiable Instruments Act, 1881 with regard to dishonour of cheque No.130707 dated 1.2.2011 in the sum of ‘ 6,00,000/-. Case of the complainant, in brief, was that Shashi Bhushan was running an institute under the name and style of ICFE at Old DLF Colony, Gurgaon in partnership with Priya. In the year 2009, accused persuaded the complainant to make investment in the institute. Case of the complainant, in brief, was that Shashi Bhushan was running an institute under the name and style of ICFE at Old DLF Colony, Gurgaon in partnership with Priya. In the year 2009, accused persuaded the complainant to make investment in the institute. Complainant invested ‘ 7,50,000/- in the year 2009 in the institute run by the accused. Accused had, however, failed to pay the profit to the complainant. On 29.6.2010, petitioner had paid ‘ 1,50,000/- to the complainant through cheque. Accused No.1 Shashi Bhushan issued the cheque in question in favour of the complainant in the sum of ‘ 6,00,000/-. Petitioner had stood as a guarantor in this regard. However, when the said cheque was presented for encashment, the same was dishonoured by the bank with the report “ Account Closed”. Hence, the complaint was filed against the petitioner and her co-accused. A perusal of the complaint itself reveals that the petitioner is not a partner of the institute run by her husband. As per the complaint itself, the institute was being run by the husband of the petitioner and Priya. The cheque in question was not signed by the petitioner. The money was invested by the complainant with the institute. In these circumstances, petitioner, who has no concern with the institute, cannot be said to be responsible qua the dishonour of the cheque issued by her husband as partner of the institute. Thus, no criminal offence can be said to have been committed by the petitioner. It appears that she has been dragged in the litigation merely because she is the wife of accused Shashu Bhushan, who had issued the cheque in question. The trial Court fell in error, while ordering the summoning of petitioner merely on the assumption that she had stood as a guarantor qua the cheque in question. Accordingly, this petition is allowed. Impugned summoning order dated 18.4.2011 (Annexure P-2), qua the petitioner, is quashed. Consequently, the complaint dated 18.4.2011 (Annexure P-1), qua the petitioner, stands dismissed.