Criminal Misc. No.M-29438 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-29438 of 2010 (O&M) Date of decision: 5.10.2010 Buta Singh ......Petitioner Versus Mukhtiar Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.S. Majithia, Advocate, for the petitioner. **** SABINA, J. This petition has been filed under Section 482 of the Code of Criminal Procedure for quashing of criminal complaint No.92 dated 15.3.2004 (Annexure P-4) under Section 138 of the Negotiable Instruments Act, 1881 read with Section 420 of the Indian Penal Code and the summoning order dated 15.3.2010 (Annexure P- 5), whereby Chief Judicial Magistrate Ist Class, Amritsar has summoned the petitioner to face trial. The contents of the complaint (Annexure P-4) read as under:- Criminal Misc. No.M-29438 of 2010 (O&M) 2 “1. That the accused fraudulently got prepared a sale deed in the name of his brother Davinder Singh son of Sucha Singh, resident of village Bharariwal, Tehsil and District Amritsar in respect of a part of property of the complainant bearing No.1483-84/9 situated at Inner Circular Road, Gate Hakima, Amritsar by taking advantage of his post and that of the illiteracy and ignorance of the complainant. The accused gave a post dated cheque in favour of the complainant bearing No.518649 dated 11.1.2010 for a sum of Rs.15,50,000/- (Rupees Fifteen lacs and fifty thousand only) drawn on the State Bank of India, town Hall, Amritsar under his signatures in order to discharge the liability of his brother in connivance and in conspiracy with whom the accused propounded and fabricated the same sale deed along with the others and at the time of issuance of the said cheque, the accused assured the complainant that it would be encashed on its presentation. The said cheque was issued towards the consideration of a part of property of the complainant regarding which the accused had got prepared a sale deed in the name of his brother Davinder Singh and the complainant was not paid any amount by Davinder Singh brother of the accused and the accused had issued the said cheque to the complainant for Criminal Misc. No.M-29438 of 2010 (O&M) 3 discharging the aforesaid liability. 2. That at the time of issuance of the aforesaid cheque, the accused had assured the complainant that the same would be honoured on its presentation. While relying upon the said assurance of the accused, complainant presented the said cheque with his bankers namely Punjab and Sind Bank, Tunda Talab Branch, Amritsar, but the same could not be encashed and was returned unpaid vide cheque returning memo dated 12.1.2010 bearing remarks “insufficient funds”. 3. That after dishonour of the said cheque, the complainant approached the accused and asked him to take the said payment, but the accused asked him to present the said cheque once again for its encashment in the month of February, 2010 and the same could be honoured at that time and as such the complainant presented the said cheque for the second time with his bankers namely Punjab and Sind Bank, Tunda Talab Branch, Amritsar, but the same could not be encashed and was again returned unpaid vide cheque returning memo dated 6.2.2010 bearing same remarks “insufficient funds”. 4. That the accused intentionally and deliberately issued the same cheque with a view to cheat the Criminal Misc. No.M-29438 of 2010 (O&M) 4 complainant and to have wrongful gain for himself and wrongful loss to the complainant. In fact, the accused was not having sufficient funds in his account to meet out the payment of the said cheque amount and in order to hoodwink the complainant, the accused issued him the said false and bogus cheque. The complainant presented the said cheque twice for encashment as per the assurance of the accused. However, the same was received back with the aforesaid memos which clearly depict that the accused had issued the said cheque with malafide intention and ulterior motive to grab the property of the complainant. In this way, the accused has rendered himself liable for the office punishable under Section 138 of the Negotiable Instrument Act by intentionally and deliberately issuing false cheque to the complainant which has since been dishonoured apart from his liability u/s 420 IPC. 5. That thereafter the complainant served a legal notice dated 19.2.2010 through registered cover and under UPC on the accused requiring him to make the payment of the amount of the cheque in question to him within a period of 15 days from the receipt of the notice, but inspite of the service of the said notice the accused has failed to make the payment which has Criminal Misc. No.M-29438 of 2010 (O&M) 5 necessitated the filing of the present complaint.” Learned counsel for the petitioner has submitted that the cheque in question was issued by way of a security and the debt was not legally enforceable and hence, the complaint as well as the summoning order were liable to be quashed. In support of his arguments, learned counsel has placed reliance on Venkatesh Bhat vs. Rohidas Shenoy 2010 (3) RCR (Criminal) 107. After hearing learned counsel for the petitioner, I am of the opinion that the present petition deserves to be dismissed. 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 Criminal Misc. No.M-29438 of 2010 (O&M) 6 are taken at their face 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 Criminal Misc. No.M-29438 of 2010 (O&M) 7 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 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.” The complainant has filed this complaint qua dishonour of cheque (Annexure P-2) dated 11.1.2010. The said cheque has been issued by the petitioner in favour of Muktyar Singh-respondent for a sum of Rs.15,50,000/-. Admittedly, the cheque in question bears the Criminal Misc. No.M-29438 of 2010 (O&M) 8 signatures of the petitioner. The fact that whether the said cheque was issued by way of a security or not would more appropriately be gone into and considered during trial. At this stage, it would not be in the interest of justice to scuttle the criminal proceedings at the very threshold. The plea taken by the petitioner that the cheque had not been issued for a legally enforceable debt can be gone into after appreciating the evidence led by the petitioner in this regard. The judgment relied upon by the learned counsel for the petitioner fails to advance the case of the petitioner as the same is based on different facts. Accordingly, this petition is dismissed. (SABINA) JUDGE October 05, 2010 anita