Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 469 (PNJ)

Satish Kumar v. Santosh Kumar Dagar

2013-04-10

Sabina

body2013
JUDGMENT Mr. Sabina, J.:- Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of complaint No. 752 dated 10.09.2007 (Annexure P3) under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short) and summoning order dated 13.10.2007 (Annexure P6) along with all consequential proceedings arising therefrom. 2. Learned counsel for the petitioners has submitted that the petitioners had not signed the cheque in question. Petitioners had already resigned from the Company before issuance of the cheque in question. Hence, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. 3. Learned counsel for respondent No.1 has submitted that when the loan was advanced to respondent No.2, petitioners were the Directors of the Company. 4. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. 5. It has been held in State of Haryana vs. Bhajan Lal, 1992 Supp(1) SCC 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the first information report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 6. Respondent No.1 has filed the complaint in question with regard to dishonour of cheque dated 01.08.2007 in the sum of Rs. 8,00,000/-. However, when the cheque was presented for encashment, the same was dishonoured with the remarks “insufficient funds”. The cheque in question was, admittedly, not signed by the petitioners. Petitioners were, initially, Directors of the Company. Annexure P2 (Form 32) reveals that the petitioners had ceased to be the Directors of the Company with effect from 05.01.2006 on account of their resignation. The cheque in question was, admittedly, not signed by the petitioners. Petitioners were, initially, Directors of the Company. Annexure P2 (Form 32) reveals that the petitioners had ceased to be the Directors of the Company with effect from 05.01.2006 on account of their resignation. Annexure P1 (Colly) are the resignations submitted by the petitioners which were duly accepted. The cheque in question was issued on 01.08.2007. By that time, the petitioners had already resigned from the Company. Although the loan was advanced by the complainant on 01.08.2006, but the fact remains that at the time of issuance of the cheque in question, petitioners were no longer Directors of the Company and hence, continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. 7. Accordingly, this petition is allowed. Criminal complaint No. 752 dated 10.09.2007 (Annexure P3) under Section 138 of the Act and all consequential proceedings arising therefrom including summoning order dated 13.10.2007 (Annexure P6) are quashed qua the petitioners. --------0.B.S.0------------