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2013 DIGILAW 155 (RAJ)

Balveer Singh v. Raj Singh

2013-01-18

SANDEEP MEHTA

body2013
JUDGMENT 1. - These two miscellaneous petitions have been directed against the order dated 29.7.2010 passed by the learned Addl. Sessions Judge, Anoopgarh in revision whereby he has affirmed the order dated 7.3.2005 passed by the learned Judicial Magistrate, 1st Class, Anoopgarh taking cognizance against the petitioners for the offences under Sections 420, 406 and 120B I.P.C. and summoning them by warrant of arrest. 2. Succinctly stated the facts of the case are that for a cheque executed by the respondent Raj Singh in favour of the petitioner Balveer Singh the petitioner prosecuted Raj Singh for the offence under Section 138 of the N.I.Act in the year 2002. The notice of the dishonouring of the cheque worth Rs. 3 lacs was issued on 26.6.2002 and a reply thereto was given by Raj Singh on 8.7.2002. When the payment of the cheque was not forthcoming, the petitioner filed a complaint under Section 138 of the N.I.Act on 19.7.2002 in the Court of Addl. Chief Judicial Magistrate, Anoopgarh against Raj Singh. 3. The respondent Raj Singh appeared in the Court on 10.5.2003 and thereafter on 13.5.2003 he filed a complaint under Section 420, 406 and 120B I.P.C. against the petitioners. The complaint was forwarded to the police for investigation under section 156(3) Cr.P.C. The police after thorough investigation submitted a negative final report in the concerned court. Upon protest petition being filed by the respondent, process was issued against the petitioners for the offences under Sections 420, 406 and 120(B) I.P.C. The allegation made in the complaint filed by Raj Singh was that he was having an Adhat in the firm of petitioner Narendra Chhabra to whom he had given some blank signed cheques. It was further alleged that Narendra Chhabra in connivance with Balveer Singh misused one of his aforesaid signed cheques and got filed a false complaint through the petitioner Balveer Singh under Section 138 of the N.I.Act. 4. The learned Magistrate rejected the final report filed by the police and took cognizance against the petitioners and summoned them for the offences under Sections 420, 406 and 120 B IPC by the order dated 7.3.2005. The petitioners challenged the order summoning them by filing revisions and the learned Revisional Court affirmed the order issuing process. 5. 4. The learned Magistrate rejected the final report filed by the police and took cognizance against the petitioners and summoned them for the offences under Sections 420, 406 and 120 B IPC by the order dated 7.3.2005. The petitioners challenged the order summoning them by filing revisions and the learned Revisional Court affirmed the order issuing process. 5. In the meantime a subsequent event and development took place that on 14.1.2005, for the cheque issued by Raj Singh in favour of the petitioner Balveer Singh, the trial court convicted him for the offence under Section 138 of the N.I.Act by its order dated 14.12.2005. Raj Singh preferred an appeal against his conviction and the same Court which decided the revisions of the petitioners by the judgment dated 29.7.2010 has upheld the conviction of Raj Singh in the appeal filed by him. 6. The petitioners have now approached this Court by way of two separate petitions seeking quashing of the order issuing process against them for the offence under Sections 420, 406 and 120-B I.P.C. 7. Mr. N.L.Joshi, learned counsel for the petitioners submits that ex-facie the complaint which has been initiated against the petitioners is nothing short of a gross abuse of the process of the Court. He submits that the complaint filed by Raj Singh was highly belated and was filed as a counter blast and for wreaking vengeance upon the petitioners. He submits that the petitioner Balveer Singh advanced a loan of Rs. 3 lacs to Raj Singh through a cheque and against the said loan Raj Singh gave a repayment cheque which was dishonoured. Thereafter a notice for demand was given to Raj Singh. He instead of making the payment of the cheque and sent an evasive reply. Thereafter the petitioner Balveer Singh moved the competent court seeking relief under Section 138 of the N.I.Act. Raj Singh as a counterblast to the said proceedings filed the complaint for the offences under section 420, 406 and 120-B IPC involving the petitioners falsely in this case. He submits that Raj Singh has never denied the fact of receiving a sum of Rs. 3 lacs as loan from the petitioner through a cheque. He thus contends that the proceedings of the complaint filed by Raj Singh having been launched as a counter blast deserve to be quashed. He submits that Raj Singh has never denied the fact of receiving a sum of Rs. 3 lacs as loan from the petitioner through a cheque. He thus contends that the proceedings of the complaint filed by Raj Singh having been launched as a counter blast deserve to be quashed. He placed reliance on a decision of this Court in the case of S.K. Gulati & Ors. v. State of Rajasthan & Anr. reported in Cr.L.R. (Raj.)2004(2)-862 in support of his contentions. 8. Heard and considered the arguments advanced at the bar. Perused the orders impugned and the case law cited at the bar. 9. In the case of S.K. Gulati v. State of Rajasthan (supra) this Court while relying on a decision of the Apex Court in the case of Sunil Kumar v. Escorts Yamaha Motors Ltd. reported in (1999) 8 SCC 468 in a similar case quashed the complaints which were filed as a counter blast and in order to preempt the criminal prosecution under Section 138 of the N.I.Act. The factual situation in the instant case is even on better footing. The respondent complainant has been himself convicted for the offence under Section 138 of the N.I.Act in relation to some cheque no. 598977. Thus, the subject matter of the proceedings pending in the Court of Judicial Magistrate for the offence under Sections 420, 406 and 120-B IPC against the petitioners. The necessary implication of such a conviction is that the respondent has been held guilty of first advancing the cheque to the petitioner Balveer Singh and thereafter not honouring the same. If the petitioners are permitted to be prosecuted for the alleged misuse of the very same cheque then, it would lead to an absolutely anomalous and absurd situation. On the one hand there is the finding of the competent court holding the respondent Raj Singh guilty of dishonour of the cheque no. 598977 and on the other hand the petitioners are facing prosecution for having procured and used the cheque fraudulently. This Court is of the opinion that such a frivolous prosecution can not be permitted to be continued. Therefore, the petitioners' prosecution in this case is nothing short of a gross abuse of the process of the court and deserves to be quashed. 10. Accordingly, both these miscellaneous petitions are allowed. The impugned orders passed by the learned Addl. This Court is of the opinion that such a frivolous prosecution can not be permitted to be continued. Therefore, the petitioners' prosecution in this case is nothing short of a gross abuse of the process of the court and deserves to be quashed. 10. Accordingly, both these miscellaneous petitions are allowed. The impugned orders passed by the learned Addl. Sessions Judge, Anoopgarh dated 29.7.2010 and the orders dated 7.3.2005 passed by the learned Judicial Magistrate, 1st Class, Anoopgarh are quashed. *******