Crl. Misc. No. 5595 M of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 5595 M 2008 (O&M) Date of decision: January 6, 2010 M.P. Saini ...Petitioner Versus Neeraj Madan ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Deepak Thapar, Advocate, for the petitioner. Mr. Ashish Aggarwal, Advocate, for the respondent. GURDEV SINGH, J. This petition under Section 482 of the Criminal Procedure Code (hereinafter referred to as 'the Code') is for quashing the Criminal Complaint (Annexure P/4) titled Neeraj Madan Versus M.P. Saini under Sections 323, 452 and 506 IPC, pending in the Court of Shri Jarnail Singh, Judicial Magistrate Ist Class, Faridabad and the summoning order dated 23.4.2005 (Annexure P/10) passed by that Court. According to the petitioner, he is the sole proprietor of the concern M/s Ddstha Mechanicals, which is engaged in the business of manufacturing of sound proof canopy chambers for generators and DG sets. Naresh Madan, husband of the complainant/respondent, purchased one such canopy, vide invoice No. 482 dated 21.5.2002 and paid Rs. 6,000/- in advance. Thereafter, another payment of Rs. 10,000/- was made. After delivery of the canopy, a cheque of Rs. 70,000/- dated 30.8.2002 was issued to the petitioner, which on presentation to the banker of Naresh Crl. Misc. No. 5595 M of 2008 2 Madan was dishonoured on account of “insufficient funds”. After serving notice, he filed a complaint under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'the Act'). Before filing that complaint, he served a notice on Naresh Madan which was replied by him through his wife, who is an advocate by profession. On 28.1.2005, the respondent/accused moved an application (Annexure P/3) under Section 294 of the Code, for cutting short the litigation/dispute by admission and denial of the documents in his possession, stating therein that the Court can always afford an opportunity to both the parties to settle the matter amicably. In order to achieve her motive, in anticipation Neeraj Madan -respondent filed a complaint against the petitioner in order to pressurize him to settle the matter in the said complaint filed under Section 138 of the Act. False and frivolous allegations were made in that complaint. She kept silent and concealed the factum of the complaint filed by her from the petitioner. On 1.8.2005, his counsel Shri Vinod Kumar Sharma was assaulted and given beatings by the Neeraj Madan-complainant and her husband regarding which FIR was got registered by the said advocate under Sections 323, 405, and 506 IPC. The complainant, alongwith some common persons, prevailed upon him for a compromise. The case was compromised on payment of Rs. 50,000/-, against Rs. 70,000/- due to the petitioner. At the time of that compromise, factum of the aforesaid complaint was never disclosed either by the complainant or her husband. He would not have received the payment of Rs. 50,000/-, against Rs. 70,000/-, after entering into the compromise, if he had the knowledge of the pendency of the complaint. No offence under Section 452 IPC is made out. There is no allegations of beatings so as to make an offence under Section 323 IPC. Crl. Misc. No. 5595 M of 2008 3 This complaint is nothing but an instrument of harassment and abuse of process of law. It has been submitted by the counsel for the petitioner that no offence is made out from the contents of the complaint and the same is liable to be quashed on that ground. He also contended that from the circumstances brought on record, it becomes probable that false complaint has been filed by the complainant on account of the previous litigation between the petitioner and her husband and she had been representing her husband as an advocate. The petitioner would not have entered into the compromise in the complaint filed by him against the husband of the complainant under Section 138 of the Act, if he had the knowledge of the pendency of the present complaint, which was kept as a guarded secret from him by the complainant. In support of his contentions, learned counsel for the petitioner has relied upon State of Haryana and others versus Bhajan Lal and others 1992 Supp (1) Supreme Court Cases 335, Inder Mohan Goswami and another v. State of Uttranchal and others AIR 2008 Supreme Court 251 and Keki Hormusji Gharda and others versus Mehervan Rustom Irani and another 2009 (3) R.C.R. (Criminal) 979. On the other hand, it has been contended by learned counsel for the respondent-complainant that the offences, for which the petitioner has been summoned to stand trial, are made out from the contents of the complaint. There is nothing on record to conclude that a false complaint had been filed. The summoning order had already been passed when the petitioner entered into the compromise in the complaint under Section 138 of the Act. It was not possible for the complainant to keep the present Crl. Misc. No. 5595 M of 2008 4 complaint as secret from the petitioner. There is no ground for quashing the complaint. In order to properly appreciate the matter, relevant portion of the complaint is re-produced below:- “7. That on 6.2.2005 the accused came to the house of the complainant and asked for his balance payment, the complainant told him that her husband was gone for work and is likely to come with in half an hour. 8. That the accused left the house of the complainant and again came after about one hour i.e. at 1.00 P.M. At that time the husband of the complainant was also present in the house and the clerk of the complainant was doing office work in the office, which is on the first floor of the house, at that time the accused called from the ground floor and when the complainant along with her husband came out of their office, and asked him to come for talks, but the accused was accompanied with one more person. He shouted that whether money is ready or not. The complainant told him that it is the matter of account and the money shall be paid after accounts are agreed/tally on this reply the accused started abusing in filthy language to the complainant and said that now he is coming to the house, second time and he shall recover the money immediately, otherwise he would see that the complainant and her husband were killed on the next date at NOIDA. He also said that he knows that both of you Crl. Misc. No. 5595 M of 2008 5 are coming by car and he would get your car crushed by a truck which will be taken as an accident and you both will be finished, on this the husband of the complainant told him not to behave in this manner but the accused rushed in the house and caught hold of the complainant's husband Naresh Madan from his neck and gave fist blows. A bare perusal of the complaint makes it clear that offences under Section 323, 452 and 406 IPC are made out. It has been recently held by the Hon'ble Supreme Court in Ram Babu Versus State of Madhya Pradesh RAJ 2009 (5) 303 that the question at the stage of quashing of the complaint is not whether there is any truth in the allegation made but whether on the basis of the allegations, cognizable offence had been alleged. Learned counsel for the petitioner has relied upon Bhajan Lal (supra) wherein some of the illustrations were given for exercising the extraordinary powers under Article 226 of the Constitution and inherent power under Section 482 of the Code by the High Court either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. One of the illustrations given therein is as under:- “(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.” There are no sufficient grounds in the present case on the basis of which it can be held that the allegations made in the complaint are Crl. Misc. No. 5595 M of 2008 6 inherently improbable. The probabilities have been pointed out by the learned counsel for the petitioners, in the above noted arguments. To my mind, the probabilities so pointed out are not such that it can be held that there is no ground for proceeding against the petitioner. The complaint is dated 4.2.2005, whereas the complaint under Section 138 of the Act was filed by the petitioner against the husband of the complaint in the year 2002. The application under Section 294 of the Code was filed by the husband of the complaint on 28.10.2005. Vide that application, the petitioner was called upon to admit the documents produced by the husband of the complainant. It was only thereafter that the petitioner entered into the compromise with the husband of the complainant after receiving Rs. 50,000/-. The complaint is dated 23.1.2006. The summoning order had already been passed before that date and processes were being issued against the petitioner by the Court. The complainant had no opportunity to keep the complaint as a guarded secret from the petitioner before the compromise was entered into. The Court had already issued bailable warrants against the petitioner. It cannot be believed that he had no knowledge about the pendency of the complaint. It cannot be said that the allegations made in the complaint are 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 petitioner. In Keki Hormusji Gharda (supra), allegations levelled in the complaint were of trivial nature. The same was quashed on the ground that law does not care for trifles. The facts of that case were altogether different from the present case and that ruling has no applicability to the facts of the present case. Crl. Misc. No. 5595 M of 2008 7 In Inder Mohan Goswami (supra), it was held that Court must ensure that criminal prosecution is not used an an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize accused. In that case, the matter in dispute was purely of civil nature. It was said that veracity of the facts alleged by the appellants and the respondent can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction. It was in those circumstances that the above said proposition of law was laid down. The same has no applicability to the facts of the present case. In view of the above discussion, I conclude that there is no merit in this petition. The same is, therefore, dismissed. January 6, 2010 (GURDEV SINGH ) prem JUDGE