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2014 DIGILAW 452 (PNJ)

Jatinder Gambhir v. Reliance Capital Ltd.

2014-03-03

BHARAT BHUSHAN PARSOON

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JUDGMENT : Bharat Bhushan Parsoon, J. Vide these 12 petitions u/s 482, Cr. P.C. equal number of complaints u/s 138 of the Negotiable Instruments Act, 1882 (hereinafter called the Act) filed by the respondent-company against the petitioner and summoning orders passed in the said criminal complaints against the petitioner as also subsequent proceedings conducted in the said matters, are sought to be quashed. Since matters of fact as also of law in all these petitions are the same and the revisional order of 25.7.2012 of the Additional Sessions Judge, Ludhiana under challenge in these petitions was also common for all the 12 criminal complaints, these quashing petitions have been taken up together for adjudication. Moreover, decision of these petitions by a common order would bring in clarity as also coherence avoiding repetition and confusion. 2. As per allegations in the complaints, Jatinder Gambhir Hospital, Ludhiana had availed financial assistance from the respondent-company for purchase of the medical equipment of the hospital. To complete the documentation, agreement No. RLMELUD 000092261 along with other agreements i.e. 92262, 92263, 92264, 92265, 92266, 92267 and 92268 as also other documents were executed between the parties. The petitioner-loanee hospital through its proprietor had issued cheques of different dates to discharge her existing liability of loan, as part payment thereof. At the time of issuance of the cheques, the petitioner-hospital had assured the respondent-complainant company that the cheques would be duly encashed as and when presented to their Banker for encashment. Cheques of different amount of different dates had been sent on different time and dates to the Banker of the petitioner but had not been cleared despite assurance of the petitioner and payment had not been made. Even demand notices issued by the respondent-complainant company through their Counsel had bore no results and when payments depicted in the relevant cheques had not been made, 12 separate criminal complaints based on dishonoured cheques of the petitioner, were launched. 3. Since facts and matters in issue in all the complaints which ultimately resulted in filing of the present petitions are the same, facts from one CRM-M No. 37653 of 2012 for ready reference have been taken up for discussion. Facts of other petitions are on the same footings. 4. In discharge of liability of her hospital i.e. Jitender Gambhir Hospital, Ludhiana, Ms. Facts of other petitions are on the same footings. 4. In discharge of liability of her hospital i.e. Jitender Gambhir Hospital, Ludhiana, Ms. Jitender Kaur Gambhir as its proprietor had issued cheque No. 256678 dated 1.3.2011 for a sum of Rs. 1,67,911/-. It was issued on their Banker i.e. Canara Bank, S.S.B. B.R.S. Nagar, Ludhiana. It was sent for payment to the said Banker of the petitioner but was returned unpaid vide memo of 20.4.2011 with the remarks "Fund Insufficient" thus showing that the petitioner had not been keeping sufficient funds in the account to honour the said cheque. Demand notice was sent on 28.4.2011 by the respondent-complainant company through its advocate but payment did not come forth from the petitioner even then, resulting in filing of a criminal complaint u/s 138 of the Act. 5. On receiving and thereafter, evaluating preliminary evidence produced by the respondent-complainant company vide order of 25.5.2011, the trial Court had summoned the proprietor of the hospital finding it to be a prima facie case against the petitioner for commission of the offence u/s 138 of the Act. The summoning order was unsuccessfully challenged by the petitioner in a criminal revision petition. Vide order of 25.7.2012, the Revisional Court found no merit in the revision petition and dismissed the same. It is against this order of the revisional Court as also order of summoning by the trial Court that the petitioner had filed this petition u/s 482, Cr. P.C. for quashing of these orders as also of the complaint and proceedings conducting therein. 6. Hearing has been provided to Counsel for the parties while going through the paper books. 7. Contention of the petitioner is that once the complaint, inter alia, was u/s 420, IPC, preliminary evidence could not be recorded by way of affidavit. It is also contended that neither representative of the complainant was competent nor the proceedings could validly be instituted by him against the petitioner. It Is also claimed that the cheques in question had been given to the complainant-company only as a matter of security and were not to be presented to Banker of the petitioner. It is also canvassed that complaint preferred by the company lacks in material particulars so as to constitute an offence u/s 138 of the Act and thus, is of no legal value. 8. It is also canvassed that complaint preferred by the company lacks in material particulars so as to constitute an offence u/s 138 of the Act and thus, is of no legal value. 8. Counsel for the respondent-complainant, on the other hand, has urged that having been defeated in her plea in two Courts below, the petitioner has abused the process of law by filing these petitions. Asserting validity and legality of the impugned orders, it is claimed that there is no merit in the petitions. 9. Merely because initial complaint filed u/s 138 of the Act had also made reference to Section 420, IPC in aid and support of the provisions of Section 138 of the Act, recording of preliminary evidence by affidavit does not run foul with the summoning order. Rather, from the averments in the complaint as also on evaluation of preliminary evidence, it clearly transpires that notwithstanding mentioning of provision of Section 420, IPC in aid and support of Section 138 of the Act in the complaint, Section 420, IPC was not pressed into service at all. It was not taken forward by the complainant and was abandoned. The trial Court rightly took no notice of Section 420, IPC and rather proceeded with the complaint u/s 138 of the Act only and finding substance in the preliminary evidence led by the complainant, had summoned the petitioner-accused only u/s 138 of the Act. No cognizance of Section 420, IPC had been taken. 10. When invoking revisional jurisdiction, summoning order of 25.5.2011 of the trial Court was challenged, no merit was found in the claim of the revisionist. The complaint was filed on 25.5.2011 and the summoning order was issued on that date itself. Gurpreet Singh Dhaliwal, authorised representative of the respondent-complainant is not only attorney of the respondent-company vide Annexure P-4 but he had also been authorised vide power of attorney (Annexure P-5) dated 11.4.2011 to institute, proceed and to defend legal proceedings and, thus, competence of the attorney in launching and prosecuting the criminal complaints as also other incidental proceedings, cannot be questioned merely because such power of attorney was only till 31.3.2012. This complaint was instituted on 25.5.2011 i.e. within the time of the power of attorney. This complaint was instituted on 25.5.2011 i.e. within the time of the power of attorney. Out of the 12 complaints, no complaint was instituted after the current period i.e. 31.3.2012 of the power of attorney and thus, once having rightly been instituted by a competent and authorised representative as also attorney of the respondent-complainant, no fault can be found with the same. Thus, validity of power of attorney till 31.3.2012 being not in dispute the criminal complaint in point of time was validly instituted. 11. Claim of the petitioner that criminal proceedings launched against her are false and frivolous as no case whatsoever is made out against her, u/s 138 of the Act, has no foundation. 12. It is urged that complaint neither had incorporated complete details nor date of service of demand notice had been given. Seeking support from Kanhaiya Lal and Another Vs. State of U.P. and Another, (2010) 3 BC 658, it is urged that in absence of date of service of notice, no offence u/s 138 of the Act is made out. In this very judgment, it has been clarified that if a complaint is insufficient in some particulars but those are supplied by way of any material or evidence brought on record, it would be sufficient compliance. In this judgment, since particulars were lacking in the complaint as also in the evidence led by the complainant, the summoning order was quashed. However, in the case in hand though the complaint omits to make mention of certain details but evidence brought in this behalf is elaborate and distinctive wherein all the necessary particulars have been brought on record. Thus, this authority does not help the petitioners. 13. Power of attorney Gurpreet Singh Dhaliwal (CW1), authorised representative of the complainant having personal knowledge, has given all relevant details of the case. Accordingly, authority titled Mukesh Aggarwal Vs. Rajinder Kumar Pahwa and Another, (2012) 3 BC 95 , cited by Counsel for the petitioner, also does not help the cause of the petitioner. 14. Similarly, yet another authority titled U.C. Saxena, Managing Director, Mehra Machines and Equipments Pvt. Ltd. Vs. Accordingly, authority titled Mukesh Aggarwal Vs. Rajinder Kumar Pahwa and Another, (2012) 3 BC 95 , cited by Counsel for the petitioner, also does not help the cause of the petitioner. 14. Similarly, yet another authority titled U.C. Saxena, Managing Director, Mehra Machines and Equipments Pvt. Ltd. Vs. Shri Madan Mohan, (1993) 104 PLR 161 , cited by Counsel for the petitioner also does not support their cause because unlike facts of this judgment, in the petitions under consideration, the attorney who was holder in due course of the disputed cheques and knowing all the facts and circumstances, had himself instituted the complaints against the petitioner. 15. In the interface of clear evidence available with the trial Court, summoning order prominently reveals that original cheque No. 256678 signed by the petitioner sent to her Banker, was dishonoured vide memo dated 20.4.2011. 16. Gurpreet Singh Dhaliwal (CW1), authorised representative of the complainant, had given details on his affidavit Ex. CA and had produced entire documentary evidence to prove that on return of the said cheque as dishonoured, legal notice was sent by the complainant through their legal adviser, postal receipt whereof is dated 28.4.2011. On the basis of allegations supported by preliminary evidence, summoning of the petitioner-accused was made vide order of 25.5.2011. Relevant portion of the summoning order of 25.5.2011 with approval is quoted as below: "During preliminary evidence complainant has reiterated all the allegations as contained in the complaint vide his sworn in affidavit Ex. CA. He has also tendered in evidence and proved all the requisite documents i.e. power of attorney, original cheque, memo, legal notice, postal receipt etc. Heard. On the basis of allegations as contained in complaint, affidavit and aforementioned documents, this Court is convinced that prima facie case is made out against accused for commission of offence falling u/s 138 of NI Act." 17. Contention of Counsel for the petitioner that necessary details are not found in the complaint regarding issuance of the date of cheque, viz. presentation and dishonour and thus, the complaint having not been properly drafted is liable to be rejected, is again an argument without any substance. Each and every detail required to be mentioned therein, in addition to some of such details in the complaint, is found in the statement of Gurpreet Singh Dhaliwal (CW1). presentation and dishonour and thus, the complaint having not been properly drafted is liable to be rejected, is again an argument without any substance. Each and every detail required to be mentioned therein, in addition to some of such details in the complaint, is found in the statement of Gurpreet Singh Dhaliwal (CW1). Issuance of the date of cheque as also of its presentation and consequent dishonour, is duly depicted therein. When the complaint is read in conjunction with the preliminary evidence, every aspect is found to be in sequence and in order. Claim of the revisionist that the cheques in question were given to the complainant only as a measure of security, again is an unsubstantiated argument. Transaction of loan was one. Had some cheque been given as security by the borrower, it was to be one and not twelve. The cheques had been handed over by the borrower (with different dates of issue mentioned thereon) in discharge of liability of the borrower. Plea of the petitioner that the cheques were blank when were signed, again is miss founded because there is no material worth the name to support such plea of the petitioner. 18. Merely because dishonour of each cheque has resulted into filing of separate criminal complaints, should not have caused ripples. Since cause of action of dishonour of each cheque is distinct and set apart from dishonour of other cheques, necessity for the complainant had arisen to file separate complaints. However, since all these complaints are being pursued in one Court without any harassment to either of the parties, nothing wrong can be attributed to the respondent-complainant on this score. On finding the preliminary evidence worth reliance, the trial Magistrate after evaluation thereof has taken cognizance of these complaints and had issued summons to the petitioner-accused. 19. Lilly Hire Purchase Pvt. Ltd. Vs. Darshan Lal, (1997) 89 CompCas 663, it is claimed by the respondents that the Revisional Court had rightly upheld the legality of the impugned summoning orders. On finding the preliminary evidence worth reliance, the trial Magistrate after evaluation thereof has taken cognizance of these complaints and had issued summons to the petitioner-accused. 19. Lilly Hire Purchase Pvt. Ltd. Vs. Darshan Lal, (1997) 89 CompCas 663, it is claimed by the respondents that the Revisional Court had rightly upheld the legality of the impugned summoning orders. The relevant part of observations made in the aforementioned decision is as under: "When a man files a complaint and supports it by his oath, rendering himself liable to prosecution and imprisonment if it is false, he is entitled to be believed unless there is some apparent reason for disbelieving him; and he is entitled to have the persons, against whom the complaints, brought before the Court and tried. The only condition requisite for the issue of process is that the complainant's deposition must show some sufficient grounds for proceeding. If the Magistrate comes to the conclusion that the facts deposed by the complainant disclosed an offence and in his opinion there is no ground for distrusting the complainant, the Magistrate would be justified in issuing the process." 20. On perusal of allegations made in the complaint and contents of the summoning order of 25.5.2011 as also the preliminary evidence led by the complainant, observations of the learned Revisional Court on this count with approval, are reproduced as below: "Thus, from perusing of the impugned orders, it cannot be said that process has been issued in mechanical order without application of mind by the trial Court. It is not necessary that a complainant should state in verbatim and reproduce in the body in his complaint all the ingredients of the offence, he is alleging." 21. Looking the entire matter from yet another angle, once the revisionist-accused has admitted her signatures on the cheque in question and has also not denied that liability, arising out of the borrowing made by her from the respondent-complainant, was existing at the time of issuance of cheques, presumption under Sections 118 and 139 of the Act, immediately comes into play and this presumption has not been rebutted by the petitioner. 22. Merely because arbitration proceedings or civil litigation (regarding repayment of loan amount by the petitioner) are pending consideration, neither new institution nor pendency of criminal litigation is barred. 22. Merely because arbitration proceedings or civil litigation (regarding repayment of loan amount by the petitioner) are pending consideration, neither new institution nor pendency of criminal litigation is barred. Proceedings before a Criminal Court are to be adjudicated on their own merit of allegations and evidence produced before the Criminal Court and are not to be coloured by civil or arbitration proceedings. 23. Proceedings under civil law as also criminal law may flow out of one and the same act of a wrong doer. Those can be initiated simultaneously and may also be proceeded further concomitantly, as finding of a Criminal Court is not binding on the Civil Court. So is true about applicability of finding of a Civil Court in a criminal case. In this regard, reference may be made to the decision of Hon'ble Supreme Court in Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, (2005) 4 SCC 370 , wherein it was held that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. 24. Even otherwise, allegations contained in the criminal complaint as also details of the summoning orders passed against the petitioner after evaluating the preliminary evidence led by the complainant, read in relation to the attending circumstances brought on record by the petitioner-accused giving her side of the case, do not even remotely give an inference that criminal proceedings initiated against the petitioner in these twelve complaints are abuse of process of law much less a gross one. Rather, taking into consideration the entire gamut of the facts and circumstances, it is not the case where any such perception of abuse of process of law exists. Thus, viewed from any angle, no fault can be found with the revisional order dated 25.7.2012 and the summoning order dated 25.5.2011. There is absolutely no merit in these petitions for quashing the proceedings and the same, being devoid of merit, are dismissed.