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2012 DIGILAW 299 (HP)

Rajbir Singh v. State Of Himachal Pradesh

2012-05-22

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. This petition has been filed u/s 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing FIR No. 58 dated 1.5.2011 got registered by respondent No. 4 at Police Station/Parwanoo under Sections 420, 120B IPC. The pleaded case of the petitioners is that M/s Shri Guru Hargobind Steels is a sole proprietorship firm owned by Gurbir Singh. M/s Shri Guru Hargobind Steels is operating as dealers and trading in various steel products. Rajbir Singh is an authorized signatory of M/s Shri Guru Hargobind Steels for operating bank accounts and signing the cheques. 2. M/s Shri Guru Hargobind Steels purchased from M/s Prontos Limited, Barwala Road, Saidpura, P.O. Dera Bassi, Distt. Mohali (Pb.) 14507 steel ingots. M/s Shri Guru Hargobind Steels purchased 86 pieces of steel ingots vide Excise Invoice No. 262 for Rs. 2,72,098/-, 88 pieces of steel ingots vide Excise Invoice No. 263 for Rs. 2,81,585/- and 175 pieces of steel ingots vide Excise Invoice No. 264 for Rs. 5,47,497/- all on 4.9.2010. M/s Prontos Ltd. Plot No. 66, Sector-5, Parwanoo, consigned the steel ingots to M/s Prontos Ltd.; Barawala Road, Saidpur, Post Office Derabassi, District Mohali (Punjab). 3. M/s Shri Hargobind Steels for purchasing steel ingots had issued cheque No. 934948 dated 14.9.2010 for Rs. 5,47,497/-, cheque No. 934946 dated 14.9.2010 for Rs. 2,72,098/- and cheque No. 934947 dated 14.9.2010 for Rs. 2,81,585/- to M/s Prontos Ltd. Barawala Road, Saidpur, Post Office Derabassi, District Mohalli (Punjab). The cheques of Indian Bank, Mandi Gobindgarh were issued at Mandi Gobindgarh. The steel ingots were received by Shri, Hargobind Steels, Mandi Gobindgarh. The Indian Bank cheques were of CC Account No. 8796663340. The Punjab and Sind Bank, took over the said account lateron. 4. The petitioners received notices in the first week of April, 2011 u/s 138 of the Negotiable Instruments Act, 1881 (for short 'Act') on behalf of M/s Prontos Ltd. Plots No. 63 to 66, Sector-5, Parwanoo in respect of the aforesaid cheques No. 934948 for Rs. 5,47,497/-, 934946 for Rs. 2,72,098/- and 034947 for Rs. 2,81,585/- all dated 14.9.2010. In the notices it was stated that the aforesaid cheques have not been honoured and they have been returned with remarks that the accounts closed. The petitioners were called upon to make the payment of cheques alongwith interest. 5. 5,47,497/-, 934946 for Rs. 2,72,098/- and 034947 for Rs. 2,81,585/- all dated 14.9.2010. In the notices it was stated that the aforesaid cheques have not been honoured and they have been returned with remarks that the accounts closed. The petitioners were called upon to make the payment of cheques alongwith interest. 5. The respondent No. 4 with an ulterior motive and malafide intention on 1.5.2011 lodged an FIR at Police Station, Parwanoo under Sections 420, 120B IPC. It has been stated in the FIR that Prontos Ltd. Sector-5, Parwanoo, District Solan sold steel ingots to Shri Guru Hargobind Steel Industries having partners Udham Singh, Rajbir Singh and Gurbir Singh. In the FIR, it has been stated that in the year 2010 in respect of material worth Rs. 11,01,180/-, three cheques of Rs. 5,47,497/-, Rs. 2,72,098/- and Rs. 2,81,585/- were drawn on Indian Bank, Mandi Gobindgarh and were sent through broker. On presentation on 9.3.2011 in the State Bank of Patiala, Parwanoo, the cheques were returned on the ground 'account closed'. Udham Singh, Rajbir Singh and Gurbir Singh cheated the complainant. The material worth lacs of rupees has been taken by the accused and sold whereas the complainant has been put to loss. 6. The respondent No. 4 despite the notices issued u/s 138 of the Act, lodged FIR No. 58 on 1.5.2011 in order to harass the petitioners. There is no case of cheating when notices u/s 138 of the Act were already issued. Udham Singh in no way is connected with M/s Shri Guru Hargobind Steels which is a proprietorship firm owned by Gurbir Singh, a certificate to this effect is dated 1.3.2007 issued by the Assistant Commissioner, Central Excise Division, Mandi Gobindgarh. 7. The Prontos Ltd. Sector-5 Parwanoo regarding the aforesaid cheques have filed complaints u/s 138 of the Act which are pending in the Court of learned Judicial Magistrate 1st Class, Kasauli being Complaints No. 45/3, 46/3 and 47/3 of 2011. The Prontos Ltd. Sector-5, Parwanoo has filed FIR No. 58 dated 1.5.2011 Police Station, Parwanoo and then complaints u/s 138 of the Act. 8. It has been stated that FIR No. 58 dated 1.5.2011, Police Station, Parwanoo is the abuse of process of law and has been filed to harass the petitioners. The Prontos Ltd. Sector-5, Parwanoo has filed FIR No. 58 dated 1.5.2011 Police Station, Parwanoo and then complaints u/s 138 of the Act. 8. It has been stated that FIR No. 58 dated 1.5.2011, Police Station, Parwanoo is the abuse of process of law and has been filed to harass the petitioners. M/s Prontos Ltd. Sector-5 Parwanoo took steps for initiating proceedings u/s 138 of the Act for dishonouring of the aforesaid cheques, however, they not only filed complaints for dishonouring of above cheques but they have also lodged FIR No. 58 dated 1.5.2011 at Police Station, Parwanoo. The FIR is nothing but an arm-twisting method adopted by the complainant. The criminal prosecution on the basis of FIR No. 58 of 2011 of the petitioners is abuse of process of law. 9. The FIR does not disclose the ingredients of offence under Sections 420, 120B IPC. The cheques were issued in the year 2010. The cheques were bounced on account of 'account closed'. The simple nonpayment of good purchased itself does not amount to commission of offence of cheating. 10. In the FIR there is no averment of inducement on the part of the petitioners and intention to cheat Prontos Ltd. from the very beginning. The ingredients of offence under Sections 405, 420 IPC are completely missing. There was no fraudulent or dishonest intention at the time of issuing of the cheques. 11. The steel ingots were purchased from Prontos Ltd., Barwala Road, Saidpur, P.O. Dera Bassi, Distt. Mohali (Pb.). The three cheques favouring Prontos Ltd. were issued at Indian Bank, Mandi Gobindgarh. No part of cause of action accrued at Parwanoo. The alleged cause of action if any has arisen at Mandi Gobindgarh. 12. The respondent No. 4 has given a cloak of criminal offence to the dispute which is entirely of civil nature. The remedy under the Act by filing complaints for bouncing of the cheques have already been availed by M/s Prontos Ltd., Parwanoo. 13. Udham Singh is not a signatory of the cheques. Udham Singh has been unnecessarily roped in a false and frivolous FIR. In the complaints u/s 138 of the Act, Gurbir Singh has been shown sole proprietor of M/s Shri Ghru Hargobind Steels and Rajbir Singh an authorized signatory. 14. 13. Udham Singh is not a signatory of the cheques. Udham Singh has been unnecessarily roped in a false and frivolous FIR. In the complaints u/s 138 of the Act, Gurbir Singh has been shown sole proprietor of M/s Shri Ghru Hargobind Steels and Rajbir Singh an authorized signatory. 14. The respondents No. 1 to 3 have filed reply to the petition and have taken preliminary objections that the petition is not maintainable, the investigation is in progress. On merits, lodging of FIR No. 58 dated 1.5.2011 by respondent No. 4 has been admitted. The investigation is in progress and facts are to be verified. The offence u/s 138 of the Act is distinct from the offence under investigation in FIR No. 58 of 2011. It has been stated that there is no abuse of process of law. Parwanoo Police has jurisdiction to investigate the FIR.' 15. The respondent No. 4 has also filed the reply and has taken several preliminary objections such as the petitioners have not approached the Court with clean hands, the material facts have been concealed, 31 criminal cases are pending u/s 138 of the Act against the petitioners in the Court at Kasauli. The petitioners are hardcore criminals and they have not maintained financial discipline. They have cheated the answering respondent. The offence u/s 420 IPC is entirely different from that of offence u/s 138 of the Act. The investigation in the FIR is still in progress, the petition is not maintainable. 16. On merits, it has been stated that the head office and factory of M/s Prontos Ltd. are situated at Parwanoo, District Solan. The name of the Company has been changed as Prontos Private Ltd. It has been denied that the cheques were issued in the name of Prontos Limited, Derabassi. On the contrary, the cheques were issued in the names of Prontos Limited. The cheques were issued with dishonest intention of deceiving the complainant The accused had prior knowledge that they will close the account after issuing of the cheques in question. On merits, respondent No. 4 denied the claim of the petitioners and prayed for dismissal of the petition. 17. The petitioners have filed rejoinder to the reply of respondent No. 4. They have denied the stand of respondent No. 4. It has been stated that petitioners vide Cheque Nos. 000000469942, 000000469943 and 000000469944 dated 6.3.2012 amounting to Rs. 5,47,497/-, Rs. On merits, respondent No. 4 denied the claim of the petitioners and prayed for dismissal of the petition. 17. The petitioners have filed rejoinder to the reply of respondent No. 4. They have denied the stand of respondent No. 4. It has been stated that petitioners vide Cheque Nos. 000000469942, 000000469943 and 000000469944 dated 6.3.2012 amounting to Rs. 5,47,497/-, Rs. 2,81,585/- and Rs. 2,72,098/- (totaling Rs. 11,01,180/-) have made the payments qua the dishonoured cheques for which FIR No. 58 dated 1.5.2011 had been lodged and the complaints u/s 138 of the Act have been filed. The cheques have been cleared. 18. Heard. The learned Counsel for the petitioners has submitted that Udham Singh has nothing to do with M/s Shri Guru Hargobind Steels which is proprietorship firm owned by Gurbir Singh, petitioner No. 2 as per Central Excise Registration Certificate dated 1.3.2007 issued by the Assistant Commissioner, Central Excise Division, Mandi Gobindgarh on 17.7.2010. The cheques in question were issued on 14.9.2010, these were presented on 9.3.2011 and were returned with remarks 'account closed' on 12.3.2011. M/s Shri Guru Hargobind Steels were having CC Account No. 87966634 with Indian Bank, Mandi Gobindgarh. The Punjab and Sind Bank, Mandi Gobindgarh took over the said account on 15.12.2010 which is clear from the letter dated 15.12.2010 of Chief Manager, Punjab and Sind Bank, Mandi Gobindgarh addressed to Manager, Indian Bank, Mandi Gobindgarh and the three cheques in question were returned on presentation. 19. There was no inducement to M/s Prontos Limited to part with steel ingots on 4.9.2010 with fraudulent, dishonest intention. The cheques were issued on 14.9.2010. In FIR No. 58 of 2011 there is no allegation of fraudulent dishonest inducement on the part of the petitioners when the steel ingots were supplied and cheques were issued. The FIR has been lodged in order to harass the petitioners. The respondent No. 4 knows the weakness of the complaints u/s 138 of the Act filed against the petitioners. The amounts of three cheques have already been paid and received by Pronots Limited. The FIR has been wrongly registered at Parwanoo where no part of alleged cause of action has arisen. The learned Counsel for the petitioners has relied G. Sagar Suri and Another Vs. State of U.P. and Others, (2000) 2 SCC 636 and Vir Prakash Sharma v. Anil Kumar Agarwal and another, (2007) 7 SCC 373 . The FIR has been wrongly registered at Parwanoo where no part of alleged cause of action has arisen. The learned Counsel for the petitioners has relied G. Sagar Suri and Another Vs. State of U.P. and Others, (2000) 2 SCC 636 and Vir Prakash Sharma v. Anil Kumar Agarwal and another, (2007) 7 SCC 373 . The submission has been made for quashing of FIR. 20. The learned Additional Advocate General has submitted that the investigation in the case is in progress, no case for quashing of FIR has been made out at this stage. She has prayed for dismissal of the petition. The learned Counsel for respondent No. 4 has submitted that petitioners have miserably failed to make out a case for quashing of FIR which is still under investigation. The filing of the complaints u/s 138 of the Act for bouncing of those very cheques for dishonouring of which FIR has been lodged has nothing to do with the criminal case registered under Sections 420, 120B IPC against the petitioners. He has submitted that the case has been rightly registered at Police Station, Parwanoo where cause of action has arisen. He has relied Dipendra G. Choksi and another v. Dipak Chimanlal Patel, 1997 (4) AI Cri. L.R. 155 and Peter Mathew Vs. Betty John, (2001) CriLJ 4555. 21. The respondent No. 4 in the reply has stated that cheques under reference were issued in the name of Prontos Limited in lieu of goods purchased from M/s Prontos Limited, Parwanoo. Prontos Limited has branch office at Derabassi. The Head Office and factory of Prontos Limited is situated at Parwanoo. In FIR, it has been stated that the cheques were presented in State Bank of Patiala, Parwanoo on 9.3.2012 which were returned with remarks 'account closed'. It is thus clear that cause of action has arisen at Parwanoo and, therefore, it cannot be said that Parwanoo Police has no jurisdiction to register FIR at Police Station, Parwanoo. 22. M/s Prontos Limited supplied ingots to M/s Shri Guru Hargobind Steels vide Excise Invoice No. 262 worth Rs. 2,72,098/-, Excise Invoice No. 263 worth Rs. 2,81,585/- and Excise Invoice No. 264 worth Rs. 5,47,497/- all dated 4.9.2010. The petitioner No. 2 Rajbir Singh issued cheques amounting to Rs. 2,72,098/-, Rs. 2,81,585/- and Rs. 5,47,497/- all dated 14.9.2010 in favour of Prontos Limited. 2,72,098/-, Excise Invoice No. 263 worth Rs. 2,81,585/- and Excise Invoice No. 264 worth Rs. 5,47,497/- all dated 4.9.2010. The petitioner No. 2 Rajbir Singh issued cheques amounting to Rs. 2,72,098/-, Rs. 2,81,585/- and Rs. 5,47,497/- all dated 14.9.2010 in favour of Prontos Limited. These cheques were presented in State Bank of Patiala, Parwanoo on 9.3.2011 and all were returned on 12.3.2011 with memo 'account closed'. It is clear from letter dated 15.12.2010 of Chief Manager, Punjab & Sind Bank, Mandi Gobindgarh addressed to Manager, Indian Bank, Mandi Gobindgarh that CC Account No. 87966634 of M/s Shri Guru Hargobind Steels which was with Indian Bank, Mandi Gobindgarh was taken over by Punjab & Sind Bank, Mandi Gobindgarh. 23. The three cheques were issued on 14.9.2010, these were presented only on 9.3.2011. It is not clear why the cheques were not presented for such a long period and were presented only on 9.3.2011. It is not the case of respondent No. 4 that on 9.3.2011 there was no amount in the account of M/s Shri Guru Hargobind Steels with Punjab & Sind Bank, Mandi Gobindgarh. The cheques worth Rs. 5,47,497/-, Rs. 2,81,585/- and Rs. 2,72,098/- which were returned on 12.3.2011 were otherwise paid to respondent No. 4 vide Cheque Nos. 000000469942, 000000469943 and 000000469944 dated 6.3.2012. 24. In S. Sugar Suri (supra), it has been held, it is to be seen if a matter which is essentially of a civil nature has been give a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. The Supreme Court further held that criminal complaint u/s 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer consequences if offence u/s 138 is proved against them. In any case, there is no occasion for the complainant to prosecute the appellants under Sections 406, 420 IPC and in his doing so, it is clearly an abuse of process of law and prosecution against the appellants for those offence is liable to be quashed. 25. They would suffer consequences if offence u/s 138 is proved against them. In any case, there is no occasion for the complainant to prosecute the appellants under Sections 406, 420 IPC and in his doing so, it is clearly an abuse of process of law and prosecution against the appellants for those offence is liable to be quashed. 25. The Supreme Court in Vir Prakash Sharma (supra) has held that ingredients of Section 420 of the Penal Code are as follows:- (i) Deception of any persons; (ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. The Supreme Court has noticed that no act of inducement on the part of appellants has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception. In law only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same does not exhibit that there had been any intention on the part of the appellant to commit an offence u/s 417 of the Penal Code. The Supreme Court quashed the order taking cognizance. 26. The learned Counsel for respondent No. 4 has relied Dipendra G. Choksi (supra) wherein it has been held that when a complaint is filed u/s 138 of the Negotiable Instruments Act, it is the duty of the Magistrate to carefully screen and examine the allegations in the complaint and if there is/are a manifest circumstances prima facie constituting an offence of cheating under IPC, then while taking cognizance and issuing the process he should see to it that it is not confined only to Section 138 of the Act but shall also issue process u/s 420 IPC. The point in issue is entirely different. The question in issue is not that while issuing process u/s 138 of the Act whether in the facts and circumstances of the present case the Magistrate should have issued process u/s 420 IPC or not. The question involved is whether in the facts and circumstances of the case FIR is an abuse of process or law or not. 27. The question in issue is not that while issuing process u/s 138 of the Act whether in the facts and circumstances of the present case the Magistrate should have issued process u/s 420 IPC or not. The question involved is whether in the facts and circumstances of the case FIR is an abuse of process or law or not. 27. In Peter Mathew (supra), the question was entirely different. In that case the complaint was filed against the petitioners alleging commission of offence u/s 138 of the Act and petitioners were also charge sheeted for offences punishable u/s 409, 420 IPC. It has been held that ingredients of offence u/s 138 of the Act are not part of offence under Sections 409, 420 IPC, therefore. Section 210 Cr.P.C. is not attracted. 28. In the present case in the FIR there is no allegation that on 4.9.2010 when the steel ingots were supplied by M/s Prontos Limited to M/s Shri Guru Hargobind Steels, there was fraudulent intention on the part of petitioners which induced M/s Prontos Limited to part with steel ingots. Similarly there is no allegation that on 14.9.2010 when the cheques were issued there was any false inducement on the part of the petitioners to M/s Prontos Limited. In fact, it has been stated in the FIR that the petitioners had been purchasing materials earlier and they were making payments through cheques. The cheques were dishonoured as the account was taken over by another bank and under those circumstances the account was closed. It is not the case of the complainant that there was no money for encashing the three cheques in the account of M/s Shri Guru Hargobind Steels in the bank which took over the account. 29. It has not been explained why the three cheques were not presented at an early date and why those cheques were presented after more than five months. The inducement, cheating from the very beginning on the part of the petitioners to Prontos Limited or respondent No. 4 is completely lacking. The complaints for dishonouring of the three cheques are already pending. In these circumstances, the prosecution of the petitioners under Sections 420, 120B IPC is nothing but harassment and abuse of process of law. The petitioner No. 3 is not at all connected with M/s Shri Guru Hargobind Steels which is clear from the certificate dated 17.7.2010. The complaints for dishonouring of the three cheques are already pending. In these circumstances, the prosecution of the petitioners under Sections 420, 120B IPC is nothing but harassment and abuse of process of law. The petitioner No. 3 is not at all connected with M/s Shri Guru Hargobind Steels which is clear from the certificate dated 17.7.2010. The petitioners have made out a case for quashing of FIR No. 58 dated 1.5.2011 registered at Police Station, Parwanoo under Sections 420, 120B IPC. In view of above, the petition is allowed, FIR No. 58 dated 1.5.2011 registered at Police Station, Parwanoo, under Sections 420, 120B IPC is quashed. The pending application, if any, also stands disposed of.