Crl. Misc. No. M- 31982 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 31982 of 2010 (O&M) Date of Decision : November 18, 2010 Sameer Bharati ........Petitioner Versus Sanjeev Rampal ........Respondent ****** CORAM : HON'BLE MRS. JUSTICE SABINA Present : Mr. O.K. Batalvi, Advocate, for the petitioner. SABINA, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of the Complaint Case No.4541/6.5.2008/1.6.2010 filed under Section under Section 138 of Negotiable Instrument Act, 1881 read with Section 420 of Indian Penal Code (in short 'IPC') and Section 117 of the Act amened up to dated titled as Sanjeev Rampal Vs. M/s Vian Infrastructure Ltd. and others, pending in the Court of Judicial Magistrate 1st Class, Faridabad (Annexure P-1) and summoning order dated 6.5.2008 (Annexure P-2) and further for staying the proceedings going on before the trial Court as well as the proceedings and consequences arising out of the complaint and summoning order. The contents of the complaint (Annexure P-1) read as under :- “That the complainant has booked a plot with accused in Haridwar Crl. Misc. No. M- 31982 of 2010 (O&M) 2 Project vide Regd. No. H-2775 and priority Allotment No. BH037 and has made total payment of Rs. 5,23,050/- but due to some financial problem complainant has cancelled the same and rquested to refund his deposited money. (photocopy of Priority Allotment letter and receipt and enclosed herewith as Annexure C-1 & C-2). 2. That the accused after admitting the liability of cancellation of the said plot, and refund of the earnest money, vide their letter dated 07.08.2007, issued a cheque no. 098855 dated 31.03.2008 for Rs. 5,23,050/- favouring the complainant drawn on Axis Bank Ltd., E-145, Saket, New Delhi-17, and assured the complainant that the said cheque would be definitely got encashed on its presentation to the banker of complainant. (Photocopy of letter and cheque are enclosed herewith as Annexure C-3 & C-4). 3. That accordng as per assurance given by the accused, complainant presented the above said cheque through is joint bank account of Ms. Archana and complainant in the bank ICICI Bank Ltd., Regional Processing Centre, E-4, Jhandewalan Extn., Near Delhi Press, New Delhi 110055 for encashment, but the said cheque was returned back as unpaid with the remarks Payment stopped by Drawer vide bank Memo dated 03.04.2008. The intimation of which was received by the complainant on 07.04.2008. (Photocopy of remark slips are enclosed herewith as Annexures C-5 and C-6). 4. That the intimation of dishonouring of said cheque was duly communicated to the accused. 5. That the accused was served with a registered AD/UPC legal Crl. Misc. No. M- 31982 of 2010 (O&M) 3 notice on 11/15.04.2008 through his counsel accused although has received the said notice and has thus failed to pay the amount of bounced cheque intentionally and deliberately and took it lightly, (notice as Annexure C-7), three postal receipts Annexures C-8 to C-10 and three UPC receipts as Annexures C-11 to C-13 are annexed hereto for perusal of the Hon'ble Court. 6. That the accused persons is guilty of commission of criminal offence which is cognizable and punishable Under Section 138 of the Negotiable Instruments Act upto date amended and Section 420 IPC and have rendered him liable to be prosecuted and punished in accordance with law as the accused did not has sufficient funds at his credit in his bank account even at the time of issuance of the said cheque, that is why the accused have got the payment of the said cheque stopped, therefore, he has intentionally with a malafide dishonest intention issued bounced cheque and cheated the complainant and his banker by playing fraud, cheating and deception and induced the complainant to depart from his hard earned money. 7. That since the transaction took place between the parties at Faridabad and complainant resides at Faridabad and complainant resides at Faridabad, therefore this Hon'ble Court has jurisdiction to try, entertain and decide the present complaint and to take cognizance of the matter in controversy. Prayer: 8. It is therefore prayed that the accused person may kindly be ordered to be summoned under Section 138 of the Negotiable Crl. Misc. No. M- 31982 of 2010 (O&M) 4 Instruments Act, and Section 420 IPC by issuing harsh process and the accused be tried, prosecuted and punished in accordance with law. It is further prayed that a compensation together with expenses incurred by the complainant which this Hon'ble Court may deem fit and proper may also be awarded to the complainant as envisaged u/s 117 of the Act.....” Learned counsel for the petitioner has submitted that the Company was incorporated on 14.8.2006. Petitioner was appointed as an Additional Director w.e.f. 3.1.2007 and resigned from the post w.e.f. 31.8.2008. The cheques in question had not been issued by the petitioner. Petitioner was not responsible for the functioning of the Company. After hearing the learned counsel for the petitioner, I am of the opinion that no ground for quashing the complaint is made out. In the case of State of Haryana vs. Bhajan Lal , , 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under :- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1)Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face Crl. Misc. No. M- 31982 of 2010 (O&M) 5 value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (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. (6) Where 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 proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide Crl. Misc. No. M- 31982 of 2010 (O&M) 6 and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” A perusal of the complaint reveals that the petitioner was Director of the Company alongwith others. The cheques in question were issued in March 2008. Petitioner had admittedly resigned from the Company w.e.f. 31.8.2008 and had joined the Company w.e.f. 3.1.2007. Thus, the cheques in question was issued during the period when the petitioner was working as a Director of the Company. In these circumstances, no ground for quashing of the complaint is made out. Dismissed. (SABINA) November 18, 2010 JUDGE Anand