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2012 DIGILAW 1639 (PNJ)

Nisha Rani v. State of Punjab

2012-11-21

NARESH KUMAR SANGHI

body2012
JUDGMENT Mr. Naresh Kumar Sanghi, J.:- Prayer in this petition, filed under Section 482, Cr.P.C., is for quashing of Complaint No. 117/2/11, instituted on 27.1.2011, titled as ‘Jagdish Chander v. Nisha Rani’ (Annexure P-1), under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, ‘the Act’); summoning order, dated 27.1.2011 (Annexure P-2); the order, dated 25.4.2011 (Annexure P-3), serving notice of accusation; the notice of accusation, dated 25.4.2011 (Annexure P- 4); and the consequential proceedings arising therefrom. 2. The brief facts of the case as culled out from the complaint (Annexure P-1) are that the petitioner-accused, Nisha Rani, and respondent No. 2-complainant, Jagdish Chander, were friends and, as such, a friendly loan of Rs. 1,50,000/- was advanced by respondent No. 2-complainant in favour of the petitioner-accused. In discharge of her financial obligation and legally enforceable debt, the petitioner-accused issued Cheque No. 640041, dated 20.12.2010, for Rs.1,50,000/-, drawn on ICICI Bank Limited, Adarsh Nagar Branch, Jalandhar, with an assurance that the said cheque would be honoured and encashed on presentation. Respondent No. 2-complainant presented the said cheque for encashment to his banker i.e. Punjab National Bank, Madan Flour Mill Road Branch, Jalandhar. However, the said cheque bounced and returned to respondent No. 2-complainant vide Memo. dated 21.12.2010, with the remarks “Funds Insufficient”. Respondent No. 2-complainant served a Registered A.D./UPC legal notice, dated 3.1.2011, but despite the same the petitioner-accused failed to make the payment within stipulated period. 3. On 27.1.2011, respondent No. 2-complainant presented a complaint (Annexure P-1) before the learned Area Judicial Magistrate, Jalandhar. After recording the preliminary evidence and finding commission of an offence under Section 138 of the Act, the petitioner-accused was summoned by the learned Judicial Magistrate Ist Class, Jalandhar, vide order dated 27.1.2011 (Annexure P-2). On appearance of the petitioner-accused, learned Trial Court vide its order dated 25.4.2011 (Annexure P-3), ordered that the notice of accusation for the offence punishable under Section 138 of the Act be served upon the petitioner-accused. Consequently, the notice of accusation (Annexure P-4) was served upon the petitioner-accused. 4. By way of the present petition, the petitioner-accused has challenged the complaint, the summoning order, the order for issuance of the notice of accusation and the notice of accusation (Annexures P-1 to P-4, respectively), inter alia, on the ground that one Gulshan Rai Bhalla was working as a money lender without any licence. 4. By way of the present petition, the petitioner-accused has challenged the complaint, the summoning order, the order for issuance of the notice of accusation and the notice of accusation (Annexures P-1 to P-4, respectively), inter alia, on the ground that one Gulshan Rai Bhalla was working as a money lender without any licence. The petitioner-accused had obtained a loan of Rs.1,94,000/- from him (Gulshan Rai Bhalla). The loan amount was transferred into the bank account of the petitioner-accused by the said Gulshan Rai Bhalla. At that time, Gulshan Kumar Bhalla had obtained 10 blank cheques, blank signed papers and photocopy of the sale deed of the house of the petitioner-accused. An amount of Rs.2,56,060/- was paid by the petitioner-accused to the said Gulshan Rai Bhalla through cheques and cash payment. In spite of repeated demands, Gulshan Rai Bhalla did not return the blank cheques to the petitioner-accused. Respondent No. 2-complainant and Gulshan Rai Bhalla misused the three cheques out of 10 blank cheques issued by the petitioner-accused. When the petitioner-accused came to know that the cheques issued by her had been misused, then she presented a complaint before the police and on the basis thereof FIR No. 70, dated 25.3.2011, under Sections 120-B and 420, IPC, was registered at Police Station, Bhargo Camp, Jalandhar, against respondent No. 2-complainant and Gulshan Rai Bhalla. 5. Learned counsel for the petitioner-accused submitted that respondent No. 2-complainant had never advanced a loan of Rs.1,50,000/- in favour of the petitioner-accused, rather Gulshan Rai Bhalla had advanced a loan of Rs.1,94,000/- to the petitioner-accused and the same was repaid. He further submitted that at the time of advancing the loan of Rs.1,94,000/- in favour of the petitioneraccused, Gulshan Rai Bhalla had obtained 10 blank cheques from the petitioner-accused. The said cheques were misused by respondent No. 2-complainant, Jagdish Chander and Gulshan Rai Bhalla. He further submitted that the complaint presented by respondent No. 2-complainant was barred in view of the provisions of the Punjab Money Lenders Act, therefore, the impugned complaint and the consequential proceedings emanating therefrom were liable to be quashed. 6. Heard. 7. The undisputed facts as are emerging from the record are that Cheque No. 640041, dated 20.12.2010, was presented by respondent No. 2-complainant before his banker and the same was returned vide Bank Memo. dated 21.12.2010, with the remarks “Funds Insufficient”. 6. Heard. 7. The undisputed facts as are emerging from the record are that Cheque No. 640041, dated 20.12.2010, was presented by respondent No. 2-complainant before his banker and the same was returned vide Bank Memo. dated 21.12.2010, with the remarks “Funds Insufficient”. After receiving the intimation regarding bouncing of the cheque, respondent No. 2-complainant served the petitioner-accused with a Registered A.D./UPC legal notice, dated 3.1.2011, demanding the cheque amount from her (petitioneraccused). When the petitioner-accused failed to respond to the said notice, then respondent No. 2-complainant presented the complaint, dated 27.1.2011 (Annexure P-1) before the learned Area Judicial Magistrate. On the same day, after recording the preliminary evidence, the learned Area Judicial Magistrate passed the summoning order (Annexure P-2). The petitioner-accused put in appearance before the learned Court below and she was served upon the notice of accusation on 25.4.2011. The FIR was lodged by the petitioner-accused on 25.3.2011, i.e. about more than three months after the date of issuance of the cheque in question and about two months after filing of the complaint and passing of the summoning order. The version put forth by respondent No. 2- complainant was, prima facie, found to be correct, therefore, the learned Judicial Magistrate Ist Class, Jalandhar, passed the summoning order on 27.1.2011. Thereafter the notice of accusation was also served upon the petitioner-accused on 25.4.2011. The petitioner-accused has now alleged that the cheques, which were handed over to Gulshan Rai Bhalla by her, were misused. Which version is correct, has to be decided during the course of the trial by the learned Court below. This Court while exercising the powers under Section 482, Cr.P.C., cannot decide the disputed questions of fact. 8. By now it is settled that the proceedings can be quashed only where the complaint does not disclose commission of any offence or the same is frivolous, vexatious or oppressive. Meticulous analysis of the case to find out whether the case would end in conviction is not called for. The complaint has to be read as a whole. If on a consideration of the statement of the complainant on oath, it appears that the ingredients of the offence are disclosed and there is no material to show that the complaint is mala fide/frivolous, the proceedings should not be quashed. Reference can be made to Dhanalakshmi v. R. Prasanna Kumar, AIR 1990 SC 494 . 9. If on a consideration of the statement of the complainant on oath, it appears that the ingredients of the offence are disclosed and there is no material to show that the complaint is mala fide/frivolous, the proceedings should not be quashed. Reference can be made to Dhanalakshmi v. R. Prasanna Kumar, AIR 1990 SC 494 . 9. In Bimal Kumar Nopani v. State of Uttar Pradesh and another, 2006 Crl.L.J. 2611, a petition under Section 482, Cr.P.C., was presented before the High Court with the plea that the cheque in question was stolen and thereafter the same was misused by the complainant and, as such, the complaint was liable to be quashed. It was held that--(i) the said fact could not be decided while exercising the powers under Section 482, Cr.P.C., since the fact was subject to proof during trial by leading evidence; (ii) no intimation regarding theft of the said cheque was ever given to the bank; and (iii) the signature on the cheque was not disputed. 10. In Vijay Nandeorao Bidwalkar v. Ramavtar Madanlal Aggarwal and another, 2002 (3) Crimes 677 , the Bombay High Court held that presumption is in favour of the holder of the cheque unless contrary is proved. 11. At this stage, this Court is not in a position to affirmatively conclude that the version put forth by the petitioneraccused is absolutely correct, therefore, the same has to be decided during the course of the trial, on the basis of the material produced and the evidence led. 12. As a sequel to the above, there is no merit in the present petition and the same is hereby dismissed. -------------------- Gurdev Singh v. Financial Commissioner, Haryana