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2021 DIGILAW 269 (HP)

Gitam Ram v. State of H. P.

2021-04-28

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2021
JUDGMENT : Notice. Mr. J. S. Guleria, learned Deputy Advocate General appears and waives service of notice on behalf of the respondents. 2. With the consent of the parties, the instant petition is taken up for final hearing. 3. This petition has been filed by the petitioners for the grant of following substantive relief: “It is, therefore, most respectfully prayed that this petition may kindly be allowed and FIR No. 2/2020, dated 18.01.2020, lodged against the petitioners under Sections 420, 406 and 120B of the Indian Penal Code in Police Station of Additional S.P. CID, Bharari, Shimla9, may kindly be quashed and setaside and for this act of kindness your humble petitioners as in duty bound shall ever pray.” 4. It is vehemently argued by Mr. Rajeshwar Thakur, learned counsel for the petitioners that once the proceedings under Section 138 of the Negotiable Instruments Act (for short NI Act) are initiated and are already pending against the petitioners, therefore, in no event, could the respondents have registered a case for the same offence i.e. dishonour of cheque, against the petitioners under Sections 420, 406 and 120B of IPC. 5. On the other hand, Mr. Ashok Sharma, learned Advocate General would argue that the petitioners are habitual offenders inasmuch as there are other criminal cases registered against the petitioners. 6. In addition to this, petitioner No.2 is otherwise fugitive, who despite the rejection of his bail application on the ground of nonparticipation in the investigation vide order dated 09.12.2020 vide Cr.MP(M) No. 207 of 2020 titled Najesh Chand vs. State of H.P. has till date not joined the investigation. As regards petitioner No.1, his bail application is stated to be pending consideration for today. 7. We have heard learned counsel for the parties and have gone through the material placed on record. 8. At the outset, it needs to be observed that even though the petitioners are seeking quashing of FIR, but for some strange reasons, the petitioners have not even annexed a copy thereof and, therefore, on this score alone, the petition is liable to be dismissed. 9. 8. At the outset, it needs to be observed that even though the petitioners are seeking quashing of FIR, but for some strange reasons, the petitioners have not even annexed a copy thereof and, therefore, on this score alone, the petition is liable to be dismissed. 9. That apart, the mere fact that in addition to the complaint under Section 138 of the NI Act, criminal cases have now been filed against the petitioners, as aforesaid, cannot itself be a ground for quashing the FIR as the remedy under Section 138 of the NI Act is in addition to the remedy available to a complainant under the provisions of the IPC or for that matter before the Civil Court. 10. In drawing such a conclusion, we are duly supported by the decision rendered by three Judges of the Hon’ble Supreme Court in Dashrath Rupsingh Rathod vs. State of Maharashtra and another (2014) 9 SCC 129 , more particularly, the findings recorded in para 20 of the judgment, which reads as under: “20. We feel compelled to reiterate our empathy with a payee who has been duped or deluded by a swindler into accepting a cheque as consideration for delivery of any of his property; or because of the receipt of a cheque has induced the payee to omit to do anything resulting in some damage to the payee. The relief introduced by Section 138 of the NI Act is in addition to the contemplations in IPC. It is still open to such a payee recipient of a dishonoured cheque to lodge a first information report with the police or file a complaint directly before the Magistrate concerned. If the payee succeeds in establishing that the inducement for accepting a cheque which subsequently bounced had occurred where he resides or ordinarily transacts business, he will not have to suffer the travails of journeying to the place where the cheque has been dishonoured. All remedies under IPC and CrPC are available to such a payee if he chooses to pursue this course of action, rather than a complaint under Section 138 of the NI Act. And of course, he can always file a suit for recovery wherever the cause of action arises dependent on his choosing.” 11. All remedies under IPC and CrPC are available to such a payee if he chooses to pursue this course of action, rather than a complaint under Section 138 of the NI Act. And of course, he can always file a suit for recovery wherever the cause of action arises dependent on his choosing.” 11. In view of the aforesaid discussion, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s), if any.