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2012 DIGILAW 1880 (DEL)

Devender Malhotra v. State NCT of Delhi

2012-05-16

PRATIBHA RANI

body2012
JUDGMENT : 1. The petitioner Devender Malhotra has invoked the inherent jurisdiction of the court by filing this petition under Section 482 Cr. PC. for quashing of Complaint Case No. 4813/1 u/s 138 of Negotiable Instrument Act titled as M/s Bhola Jewellers vs. M/s M2 Jewels. He has prayed that the proceedings arising out of the said complaint case and setting aside the order dated 5.4.2010 and 18.1.2012 passed by Shri Nipun Awasthi, MM, Saket Courts, New Delhi be set aside. 2. Although in the petition, the prayer has been made to quash the summoning order dated 5.4.2010 as well as the order dated 18th January, 2012 vide which notice under section 251 Cr. PC. was served on the petitioner during the course of hearing, the prayer regarding the quashing of summoning order dated 5.4.2010 was not press. The grounds on which the quashing of notice under Section 251 Cr. PC has been sought to be quashed are that the complainant/respondent no.2 in the complaint case is neither the partner in the firm M/s M2 Jewels, accused no. 1 in the complaint case nor has signed or issued the cheque. He is also not the authorized signatory on behalf of partnership firm nor the cheque was drawn from his account. As such, no sufficient ground to proceed against the petitioner for committing offence punishable under Section 138 of the Negotiable Instrument Act has been made and the order needs to be quashed in the given facts. 3. I have heard learned counsel for the petitioner and counsel for respondent no.2 M/s Bhola Jewellers, the complainant. 4. On behalf of the petitioner, it has been submitted that respondent no.2 has nothing to do with the transaction and at least against him, notice under Section 251 CrPC could not have been served as there was no allegation against him in respect of this transaction for which the cheque was issued by accused no. 4. Referring to the settlement recorded in the proceedings dated 1st March, 2011 by learned MM, it has been submitted that it was under threat and pressure from the court and not a voluntary act. 4. Referring to the settlement recorded in the proceedings dated 1st March, 2011 by learned MM, it has been submitted that it was under threat and pressure from the court and not a voluntary act. Learned counsel for the petitioner has relied upon 2009 (4) JCC (NI) 274 Vinod Zaveri and Ors vs. M/s Metallica Industries Ltd. and submitted that partnership deed has not been filed by the complainant and for that reason also, the complaint is liable to be dismissed. 5. On behalf of counsel for respondent no.2/complainant, the attention of the court was drawn to the averments made in para 4 of the complaint, copy of which is annexed with the petitioner to show the connection of the petitioner with the transaction and the cheque issued. It has been submitted that the cheque was issued by accused no. 4 as partner of accused no. 1 with the consent and in connivance with the accused nos. 2 and 3. Counsel for the respondent no.-2/com-plainant has also placed on record a certified copy of the proceedings of this case dated 1st March, 2011 whereby the parties entered into a compromise and the dispute was settled on payment of Rs. 15 lakhs only which was payable in installment as incorporated in para 1 to 5 of the terms of settlement recorded in the proceeding. 6. Counsel for the respondent no.2/complainant has also drawn the attention of the court to para 6 of the proceedings wherein it has been recorded as under- "That in case accused persons breach the terms and conditions mentioned in this order sheet then this case shall revive from the stage of framing of notice under Section 251 Cr. PC." 7. Not only that, the court has also recorded in para 8 of the order sheet that the complainant reserved his right to make appropriate complaint as per law if accused persons breach the aforesaid terms and conditions. Both the parties have signed the order sheet after reading its contents and acknowledging the same to be correct. 8. PC." 7. Not only that, the court has also recorded in para 8 of the order sheet that the complainant reserved his right to make appropriate complaint as per law if accused persons breach the aforesaid terms and conditions. Both the parties have signed the order sheet after reading its contents and acknowledging the same to be correct. 8. Counsel for the respondent no.2/complainant submitted that the summoning order was not challenged by the petitioners for almost two years and if he had nothing to do with the cheque in issue, where was the occasion for him to enter into the settlement and sign the proceedings which further proves the case of the complainant that all the accused persons were in connivance with each other at the time when the cheque was issued to the complainant. 9. I have considered the rival submission. The case is at the stage of evidence and fixed for cross-examination of the complainant. The partnership deed could not have been annexed along with the complaint by the complainant for the obvious reason that it was not in his possession at that time and the same if required to be proved, could be proved during the trial. 10. Perusal of the certified copy of the proceedings dated 01.03.2011 reveals that on that day, all the accused persons were present in person. They made statement giving the payment schedule and in case of breach of terms and conditions of the settlement, the complaint would stand revive from the stage of service of notice under Section 251 CrPC. The proceedings were signed by all the parties. 11. In a petition seeking quashing of summoning order or service of notice under Section 251 CrPC on the plea that the petitioner has nothing to do with the transaction in respect of which the cheque was issued, plea like the settlement being entered into under threat or pressure from the Court cannot be permitted. 12. It is the subject matter of trial as to in what capacity the cheque was issued by accused no. 4 on behalf of the remaining accused persons. The Apex Court in the case State of A.P. vs. Courishetty Mahesh and Ors. (2010) 11 SCC 226 has laid down the guidelines as to when the powers under Section 482 CrPC can be exercised by this Court. 4 on behalf of the remaining accused persons. The Apex Court in the case State of A.P. vs. Courishetty Mahesh and Ors. (2010) 11 SCC 226 has laid down the guidelines as to when the powers under Section 482 CrPC can be exercised by this Court. In para 12 of the report is extracted as under :- 12. While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short circuit a prosecution and brings about its closure without full fledged enquiry, 13. Vide the impugned order, the learned MM has served a notice under Section 251 Cr.P.C. explaining the accusation against the petitioner and if the petitioner has any defence to make, it is a subject matter of trial before the learned trial court. 14. In view of the above said discussion, there is no merit in the petition. The same is hereby dismissed.