IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc M- 28410 of 2009 Date of decision: 29.1.2010 Davinder Singh …Petitioner Versus State of Punjab …Respondent Present: Mr SS Rangi, Advocate for the petitioner. Mr Shilesh Gupta, DAG Punajb. S.S.SARON, J. Heard counsel for the parties. The petitioner seeks pre-arrest bail in a case registered against him on 1.9.2009 for the offences under Sections 406 and 420 IPC. The FIR in the case has been registered on the complaint of Parveen Kumar, who has alleged that the petitioner and his brother – Sarabjit Singh have cheated him on the pretext of sending the complainant’s son abroad. It is alleged by the complainant – Parveen Kumar that the petitioner met him at his Hotel Plaza which is situated at Morinda about 2- 1/2 years earlier to the registration of the FIR and talked to the complainant for sending his son abroad. The petitioner informed the complainant that his brother – Sarabjit Singh was residing in Italy and they were sending persons abroad. The complainant was taken in by the promises made by the petitioner and agreed to send his son – Keshav Rai Sood to Italy. The deal was settled at Rs 12.50 lakhs and the petitioner took Rs 2.50 lakhs as also Cr Misc M- 28410 of 2009 2 photocopy of the Passport of Keshav Rai Sood – son of the complainant. The petitioner came to the complainant after a month and informed him that the papers of his son were ready and there was a need of more money. The complainant paid the petitioner another sum of Rs 3.50 lakhs. Then the papers were demanded from him after 15 days. However, he kept on putting off the matter and used to say that he would in a day or two supply the papers. Thereafter, the petitioner came to the complainant at Hotel Plaza after 3 months and informed him that Sarabjit Singh – brother of the complainant had been cheated in Italy but the papers of the complainant were ready and therefore, the complainant was told to arrange more money. Then another sum of Rs 2.00 lakhs was paid. It is alleged that the complainant had completed the payment of Rs 6.50 lakhs within 20 days. The petitioner then switched off his phone and did not contact the complainant. When the complainant went to his house at village Kotla Suleman, a lady met him there and she informed the complainant that she was not aware as to who was Devinder Singh (petitioner) and he was not residing there. The complainant used to remain tense after the happening and he suffered from mental tension. After Devinder Singh was traced out in village Kotla Suleman and he promised that he would return the money which he had taken for sending the son of the complainant abroad as the job had not been done. The complainant then told his friends about this and then the complainant along with Gora Lal Jhanji, a resident of Sirhind, along with Amrik Singh resident of Bhatmajra, met at the house of Amrik Singh at village Bhatmajra. The petitioner then handed over a post-dated cheque of Rs 6.50 laks on 15.5.2008 in favour of Amrik Singh, which was drawn on State Bank of Patiala, Branch Sirhind Mandi. He said that the Cr Misc M- 28410 of 2009 3 remaining amount would be paid before 31.3.2009. The cheque was presented which, however, was dishonoured. Thereafter, they talked to the petitioner on phone and he started giving threats of killing them. He also threatened that in case they tried to contact him, they will be done to death. The complainant has alleged that a fraud of Rs 12.50 laks had been committed. Therefore, he requested that a suitable action be taken Learned counsel for the petitioner contends that the FIR is absolutely false. It is submitted that the complainant has alleged that the deal was settled for Rs 12.50 lakhs, out of which he is alleged to have paid Rs 2.50 lakhs along with a photocopy of the Passport of his son namely Keshav Rai Sood. Thereafter, he paid another sum of Rs 3.50 lakhs. Then the complainant is said to have demanded the papers. The petitioner started putting off the matter. It is submitted that in case the amount is calculated, the net amount works out to Rs 6.50 lakhs i.e. 2.50 laks + Rs 3.50 lakhs + Rs 2.00 lakhs, which would come to Rs 8.00 lakhs whereas he has leveled allegations of being cheated of Rs 12.50 lakhs. It is also submitted that in case a cheque for an amount of Rs 6.50 lakhs was given to Amrik Singh, it was for Amrik Singh to proceed against the petitioner under Section 138 of the Negotiable Instruments Act or file a suit for recovery of the amount. The validity period of the post-dated cheque dated 31.12.2008 had ended on 30.6.2009 and no complaint or suit has been filed so far. Therefore, it is submitted that any transaction which took place between the complainant and Amrik Singh does not concern the petitioner. In response, learned counsel for the State submits that as per the allegations in the FIR, an amount of Rs 12.50 lakhs has been taken by the petitioner. It is submitted that a sum of Rs 2.50 lakhs was initially taken Cr Misc M- 28410 of 2009 4 and then after 2 months, another sum of Rs 3.50 lakhs was taken. Then, 3 months thereafter, another sum of Rs 2.00 lakhs was taken and it is mentioned that within 20 days the amount of Rs 6.50 lakhs was completed which would mean that after the initial payment of Rs 2.50 lakhs and Rs 3.50 lakhs i.e. Rs 6.00 lakhs, the balance payment of Rs 6.50 lakhs was made within 20 days. Besides, it is submitted that Amrik Singh was joined in the settlement in the dispute and the fact that the petitioner gave a cheque of Rs 6.50 lakhs to Amrik Singh would show that he indeed owed money and in case it is alleged that the petitioner had any business transaction with said Amrik Singh, he has not mentioned any such. I have given my thoughtful consideration to the matter. The allegation in the complaint inter alia are that the petitioner has taken a sum of Rs 12.50 lakhs for sending Keshav Rai Sood son of the complainant – Parveen Kumar abroad. The fact that the amount was taken is mentioned in the complaint. It is stated that the deal was settled for Rs 12.50 lakhs and the petitioner took Rs 2.50 lakhs as also a photocopy of the Passport of Keshav Rai Sood. Then, the petitioner took another sum of Rs 3.50 lakhs and then papers were demanded from the complainant. However, he put off the matter. The petitioner after 3 months, came to Hotel Plaza and told the complainant that his brother – Sarabjit Singh had been cheated in Italy but his papers were ready and he should arrange money. Thereafter, the complainant paid Rs 2.00 lakhs to him and he completed the payment of Rs 6.50 lakhs within 20 days. This would mean that apart from Rs 6.00 lakhs earlier paid, a balance of Rs 6.50 lakhs was to be made. As such, the calculations as submitted by the learned counsel for the petitioner did not appear to be correct. It may also be noticed that the petitioner himself when Cr Misc M- 28410 of 2009 5 negotiations were carried out with him at the house of Amrik Singh, resident of Bhatmajra, had given a post-dated cheque dated 31.12.2008 for a sum of Rs 6.50 lakhs in favour of Amrik Singh. The fact of giving the said cheque, it is alleged, is with regard to business transactions with Amrik Singh. However, no such business transaction with Amrik Singh has been spelt out. The question that Amrik Singh has not filed a complaint under Section 138 of the Negotiable Instruments Act or that he had not filed a civil suit, is for the complainant and Amrik Singh to avail the remedy. The same does not mean that the allegations as made by the complainant at cannot be said to be false. Keeping in view the nature of the allegations in the facts and circumstances of the case, no ground for pre-arrest bail is made out. This petition is accordingly dismissed. 29.1.2010 ( S.S.SARON ) ASR Judge