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2018 DIGILAW 836 (JK)

Narinder Pal Singh v. S. Kulbir Singh

2018-10-26

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. In this petition filed under Section 561-A of the Code of Criminal Procedure Svt. 1989, the petitioner inter alia seeks quashing of order of cognizance dated 26.04.2016 as well as issuance of summons by Special Munsiff Mobile Magistrate, Jammu and also for quashment of the complaint filed by respondent under Section 138 of the Negotiable Instrument Act before the Court of Munsiff, Jammu. 2. Brief facts of the case are that the petitioner borrowed a sum of Rs. 2.00 lacs from respondent in June 2015 and on demand had given two blank cheques bearing No. 499466 and 499467 including the cheque in question on the assurance of respondent that he will just retain these cheques as security purpose and will return them to the petitioner after liquidation of borrowed amount. The respondent also charged interest from the petitioner and the total amount decided to be repaid was fixed at Rs. 3.00 lacs. 3. On asking of the respondent to return the amount early, the petitioner issued three cheques bearing Nos. 905128, 905129 and 905130 on 18.02.2016. These cheques were issued in the name of wife and son of respondent, namely, Surinder Kour and Jatinder Singh, which were duly presented by above named persons on 20.02.2016 and Rs. 3.00 lacs were withdrawn in the name of Surinder Kour and Jatinder Singh. After liquidation of whole of the borrowed money along with interest, the petitioner requested the respondent to return the cheques previously given to him but he did not return the same after repeated requests. It is contended that when the petitioner asked the respondent that if he will not return the cheques previously given, he will forced to knock the doors of Court due to which the respondent got aggressive and on 06.03.2016, he forcibly entered the office premises of petitioner and assaulted the petitioner using abusive language and ransacked the office and while leaving had also threatened the petitioner of causing wrongful damage to the petitioner. 4. The petitioner, thereafter, filed a complaint against the respondent before the Munsiff, R. S. Pura under Sections 452, 506, 323, 336 RPC and also for illegally retaining of the cheques as aforesaid by respondent. The Munsiff, R. S. Pura issued process against the respondent and the matter is still pending. 4. The petitioner, thereafter, filed a complaint against the respondent before the Munsiff, R. S. Pura under Sections 452, 506, 323, 336 RPC and also for illegally retaining of the cheques as aforesaid by respondent. The Munsiff, R. S. Pura issued process against the respondent and the matter is still pending. It is further contended that the respondent intentionally avoided his appearance before Munsiff, R.S. Pura and by misusing the cheques including the cheques in question, presented the cheque bearing No. 499466 in the Bank and has filed a false and frivolous complaint under Section 138 of the Negotiable Instrument Act against the petitioner. It is contended that the learned Magistrate without going through the legality of the complaint has taken the cognizance against the petitioner on 26.04.2016 and issued summons against the petitioner. In the aforesaid factual background, the petitioner has approached this court seeking quashment of cognizance order dated 26.04.2016 as well as issuance of summons by the Special Munsiff Mobile Magistrate, Jammu. 5. The petitioners being aggrieved of order dated 26.04.2016 as well as issuance of summons has challenged the same in the instant petition on the ground that : (i) The order impugned is non-speaking, illegal and has been passed against the provisions of law. That cheque was presented after expiry of time of three months from date of issue ,so complaint was not maintainable. The court below has not thoroughly examined the contents of complaint before taking the cognizance against the petitioner. The complaint has been filed on the basis of the last presentation of the cheque in question i.e. on 1.03.2016 and the cheque was presented after the expiry of the validity period. (ii) That the complaint suffers from a delay of 85/86 days in its filing against the petitioner on the basis of first presentation of the cheque in question, and; (iii) That the learned Magistrate has no jurisdiction to entertain the complaint. 6. The respondent has not filed the objections despite various opportunities granted. 7. I have considered the rival contentions of learned counsel for the parties. 8. 6. The respondent has not filed the objections despite various opportunities granted. 7. I have considered the rival contentions of learned counsel for the parties. 8. Learned counsel for the petitioner has reiterated the grounds taken in memo of petition; in support of his arguments has placed reliance on the judgment of the Supreme Court in the case of Ishar Alloy Steels Limited vs. Jayaswals Neco Limited, 2001 AIR (SC) 1161; whereas counsel for respondent has argued that factual defenses taken cannot be considered in this petition and cheque was presented within time. 9. The law with regard to quashing of FIR/complaint is now well settled. These can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex-facie all merited prosecution is throttled at the threshold without allowing the material in support of it. 10. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. 11. In present case, petitioner has taken pleas that he borrowed a sum of Rs. 2.00 lacs from respondent in June 2015 and on demand had given two blank cheques bearing No. 499466 and 499467 including the cheque in question on the assurance of respondent that he will just retain these cheques as security purpose and will return them to the petitioner after liquidation of borrowed amount. The respondent also charged interest from the petitioner and the total amount decided to be repaid was fixed at Rs. 3.00 lacs; that on asking of the respondent to return the amount early, the petitioner issued three cheques bearing Nos. 905128, 905129 and 905130 on 18.02.2016. These cheques were issued in the name of wife and son of respondent, namely, Surinder Kour and Jatinder Singe, which were duly presented by above named persons on 20.02.2016 and Rs. 3.00 lacs were withdrawn in the name of Surinder Kour and Jatinder Singh. 905128, 905129 and 905130 on 18.02.2016. These cheques were issued in the name of wife and son of respondent, namely, Surinder Kour and Jatinder Singe, which were duly presented by above named persons on 20.02.2016 and Rs. 3.00 lacs were withdrawn in the name of Surinder Kour and Jatinder Singh. After liquidation of whole of the borrowed money along with interest, the petitioner requested the respondent to return the cheques previously given to him but he did not return the same after repeated requests; that when the petitioner asked the respondent that if he will not return the cheques previously given, he will forced to knock the doors of Court due to which the respondent got aggressive and on 06.03.2016, he forcibly entered the office premises of petitioner and assaulted the petitioner using abusive language and ransacked the office and while leaving had also threatened the petitioner of causing wrongful damage to the petitioner; that petitioner, thereafter, filed a complaint against the respondent before the Munsiff, R.S. Pura under Sections 452, 506, 323, 336 RPC and also for illegally retaining of the cheques as aforesaid by respondent. The Munsiff, R.S. Pura issued process against the respondent and the matter is still pending. It is further contended that the respondent intentionally avoided his appearance before Munsiff, R.S. Pura and by misusing the cheques including the cheques in question, presented the cheque bearing No. 499466 in the Bank and has filed a false and frivolous complaint under Section 138 of the Negotiable Instrument Act against the petitioner. 12. From bare perusal of these allegations, it is evident that these are factual aspects; these cannot be decided in this petition; these are facts which petitioner is required to prove before Court below. 13. One more plea has been taken that cheque was dated 02.12.2015 and was required to be presented till 01.03.2016, but it was presented on 05.03.2016, so complaint was not maintainable. 14. I have considered this aspect of the matter. Bare perusal of para no.4 of complaint, it is evident that there is specifically mentioned that cheque was returned with endorsement “funds insufficient” with captured date 02.03.2016 and session date 03.03.2016 and again it was presented and again it was returned with endorsement “funds insufficient” with captured date 05.03.2016 and session date 07.03.2016. 15. Bare perusal of para no.4 of complaint, it is evident that there is specifically mentioned that cheque was returned with endorsement “funds insufficient” with captured date 02.03.2016 and session date 03.03.2016 and again it was presented and again it was returned with endorsement “funds insufficient” with captured date 05.03.2016 and session date 07.03.2016. 15. Section 138 of the Negotiable Instruments Act, 1881 provides for circumstances under which a case for dishonour of cheques is filed. It states that a cheque has to be presented to the bank within 6 months from the date on which it was drawn or within a period of its validity whichever is earlier. Also the following circumstances must be seen:- 1. The payee or holder, during validity of the cheque, makes a demand for payment of money specified in the cheque by giving a written notice within 30 days of the receipt of the information from the bank that the cheque was returned as unpaid to the drawer of the cheque. 2. The drawer of cheque failed to pay the said amount to the payee or holder, during validity of the cheque, within 15 days of receipt of notice. 16. In view of above Section, cheque can be presented at any times within six months of its issuance. So this plea of counsel for petitioner is also not tenable. It is not a case of petitioner that 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 proceeding. Even law cited by counsel for petitioner says that cheque must be presented within six months. 17. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated.