Criminal Misc. No.M-35632 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-35632 of 2009 (O&M) Date of decision: 8.9.2011 Om Parkash Shroff and others ......Petitioners Versus M/s Neelam International and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Alok Jain, Advocate, for the petitioners. Mr.S.L.Bhalla, Advocate, for respondents . **** SABINA, J. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) for quashing of complaint No. 53 A-2 dated 20.4.2009 (Annexure P-1) under Section under 138 of the Negotiable Instruments Act, 1881 (for short- “ the Act”) and all the subsequent proceedings arising therefrom. Learned counsel for the petitioners has submitted that the petitioners had retired as directors of the company in the year 2006. The cheque in question had been issued much later. Petitioner No.3 had been later employed by the company but had resigned from the job before the cheque was dishonoured. The cheque in question Criminal Misc. No.M-35632 of 2009 (O&M) 2 was a post dated cheque. Learned counsel for the respondents, on the other hand, has submitted that the complaint in question could not be quashed qua the petitioners merely because they had resigned as directors of the company. In support of his arguments, learned counsel has placed reliance on Malwa Cotton and Spinning Mills Ltd. vs. Virsa Singh Sidhu and others 2008 (4) RCR (Criminal) 25. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. 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 value and accepted in their entirety do not prima facie constitute any offence or Criminal Misc. No.M-35632 of 2009 (O&M) 3 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 Criminal Misc. No.M-35632 of 2009 (O&M) 4 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 complaint in question has been filed by the complainant qua dishonour of cheque dated 4.9.2008 amounting to ` 18,64,686/-. The said cheque was dishonoured by the bank when it was presented for encashment vide memo dated 21.2.2009 with the remarks “funds insufficient”. Annexure P-3 (colly) is form No.32 submitted by petitioner No.1 Om Parkash Shroff qua his resignation from the company along with receipt of requisite fee deposited by him with the Department of Company Affairs. Vide the same, it was also confirmed that the said petitioner was not associated with the company w.e.f. 30.9.2006. Annexure P-5 (colly) is form No.32 submitted by petitioner No.2 M.K.Rustagi qua his resignation from the company along with receipt of requisite fee deposited by him with Criminal Misc. No.M-35632 of 2009 (O&M) 5 the Department of Company Affairs. Vide the same, it was confirmed that the said petitioner was not associated with the company w.e.f. 30.9.2006. Annexure P-4 is the form No.32 submitted by petitioner No.3 Nand Gopal Khaitan qua his resignation from the company along with receipt of requisite fee deposited by him with the Department of Company Affairs. Vide the same, it was confirmed that the said petitioner was not associated with the company w.e.f. 30.3.2006. Thus, from the above documents, it is evident that the petitioners had resigned from the company way back in the year 2006. The fact that petitioner No.3 had joined as an employee of the company would not make him liable for criminal prosecution as the cheque in question is admittedly not signed by petitioner No.3. The judgment relied upon by learned counsel for the respondents fails to advance the case of the respondents as it is based on its own facts. In the facts and circumstances of the present case, criminal proceedings against the petitioners would be nothing but an abuse of process of law. Accordingly, the present petition is allowed. Complaint No. 53 A-2 dated 20.4.2009 (Annexure P-1) under Section under 138 of the Act and all the subsequent proceedings arising therefrom, qua the petitioners, are quashed. (SABINA) JUDGE September 08, 2011 anita