Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 2171 (RAJ)

Ashok Singh v. State of Rajasthan

2013-12-04

NISHA GUPTA

body2013
JUDGMENT 1. - This Misc. Petition under Section 482 has been filed for quashing of FIR No. 140/2013 registered at Police Station, Arawali Vihar, Alwar dated 2.4.2013 for offence under Sections 420, 120- B, 467, 468 and 471 IPC. 2. The short facts of the case as narrated in the petition are that complainant non petitioner No. 2 has lodged an FIR for the offence under Section 420, 120-B, 467, 468 and 471 IPC by way of complaint which was sent for investigation under Section 156(3) Cr.P.C. The contention of the present petitioner is that the FIR is manifestly attended with mala fides and only to create pressure to the present petitioner who has filed complaint under Section 138 of the Negotiable Instruments Act (in short NI Act) against non petitioner No. 2. The petitioner has advanced a loan of Rs. 2,80,000/- and cheque was issued by non petitioner No. 2 in his favour which was submitted in the Bank on 27.2.2013 but it was dishonoured. Again on the request of respondent No. 2, it was presented on 3.3.2013 and it was dishonoured with an endorsement of insufficient fund, third time also it was presented but again it was dishonoured and notice has been served on respondent on 11.3.2013 which was duly received by respondent No. 2. Thereafter, present petitioner lodged a complaint under Section 138 NI Act, therefore, just to create a defence, this false FIR has been lodged. As per FIR chqeus were lost in the month of September, 2012 however respondent No. 2 has never lodged any report to the police nor any information has been supplied to the Bank for "stop payment", this itself is sufficient to prove that the present FIR has been registered only with a view to create defence and to create pressure on the present petitioner. In view of this matter, the present FIR be quashed.Per contra, the contention of the counsel for respondent No. 2 is that ingredients of offence has been set out in the First Information Report and no case is made out for quashing the FIR. 3. Heard the learned counsel for the petitioner learned Public Prosecutor and counsel for the respondent No. 2 and perused the impugned FIR as well as the documents produced by the present petitioner. 4. 3. Heard the learned counsel for the petitioner learned Public Prosecutor and counsel for the respondent No. 2 and perused the impugned FIR as well as the documents produced by the present petitioner. 4. It is not in dispute that the complaint has been filed by the present petitioner under Section 138 NI Act against respondent No. 2 and after receipt of notice, the impugned FIR has been lodged. Bank memos has also been placed on record that due to insufficient funds, cheques have been dishonoured. Admitted case of respondent No. 2 in FIR is that in September, 2012, the cheques have been given to present petitioner which were found to be lost but at that time, nothing has been done by respondent No. 2 to stop payment to the Bank or no FIR for lost cheques have been lodged and only after initiation of proceedings under Section 138 NI Act, the impugned FIR has been lodged. 5. The present petitioner has relied upon Mahindra & Mahindra F.S. Ltd.& Anr v. Rajiv Dubey, (2009) 1 SCC 706 wherein it was held:- "10. In the meanwhile, in order to pre-empt the impending proceeding under Section 138 of the Act, the respondent filed a criminal complaint CC No. 210 of 2000 against the appellants under Sections 406, 420, 294, 506, 34 IPC before SDJM Bhubneshwar on 11-05-2000, interalia, claiming that the cheques issued by respondent were towards an outstanding amount of Rs. 1,89,000/- and the said payment has already been made by the respondent by way of a Demand Draft of which no number, date or any other details are provided in the complaint. The appellants became aware of institution of such a case only later when the process was issued on 18.04.2001 and the same was received by the appellants." "18. It is interesting to note that the respondent does not dispute issuance of cheques. Even a casual reading of the complaint does not show that the ingredients of Section 406 IPC are in any event made out. It is also not understandable as to how Section 294 has any application to the facts of the case much less Section 506 IPC. In addition to this, perusal of the complaint apparently shows the ulterior motive. Even a casual reading of the complaint does not show that the ingredients of Section 406 IPC are in any event made out. It is also not understandable as to how Section 294 has any application to the facts of the case much less Section 506 IPC. In addition to this, perusal of the complaint apparently shows the ulterior motive. It is clear that the proceeding initiated by the respondent clearly amounted to abuse of the process of law." Further reliance has been placed on Sunil Kumar v. M/S. Escorts Yamaha Motors Ltd. & ors., AIR 2000 SC 27 wherein it was held:- "... necessary ingredients of the offence of cheating or criminal breach of trust have not been made out and on the other hand the attendant circumstances indicate that the FIR was lodged to pre-empt the filing of the criminal complaint against the informant under Section 138 of the Negotiable Instruments Act. The High Court, therefore, was well within its power in quashing the FIR as otherwise it would tantamount to an abuse of process of Court." 6. The present case is squarely covered by the law laid down above. 7. The respondent No. 2 has relied upon State of Karnataka & Anr. v. Pastor P. Raju, AIR 2006 SC 2825 where the issue was whether previous sanction of Central Government is necessary at the time of investigation which is not the issue before this Court. Further reliance has been placed on Mahavir Prashad Gupta & Anr. v. State of National Capital Territory of Delhi & ors., AIR 2000 SC 3101 where facts were sufficient to show that there was ingredient of criminal breach of trust and forgery but here in the present case, from the bare perusal of FIR, nothing has been stated about forgery or cheating. Admittedly, cheques were given to the present petitioner and entrustment of cheques was not mala fide.In view of the law laid down supra, the petition deserves to be allowed. Consequently, the petition is allowed. The impugned FIR No. 140/2013 registered at Police Station, Arawali Vihar, Alwar dated 2.4.2013 for offence under Sections 420, 120-B, 467, 468 and 471 IPC is quashed.Petition allowed. *******