Crl. Misc. No. M-30209 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 30209 of 2010 (O&M) Date of Decision: October 12, 2010 Davinder Kumar ........Petitioner Versus Gurpreet Singh ........Respondent ****** CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. Gaurav Sethi, 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 No.1400 dated 8.6.2010, titled as Gurpreet Singh Bhinder versus Davinder Kumar, under Section 138 and 142 of the Negotiable Instrument, 1881 (in short 'the Act') pending in the Court of Judicial Magistrate 1st Class, Karnal (Annexure P-1) and the summoning order dated 10.8.2010 under Section 138 of the Act (Annexure P-4) and all consequent proceedings arising therefrom. The contents of the complaint (Annexure P-1) read as under :- “1. That the accused was under the liability of legally enforceable debt to the complainant and in order to Crl. Misc. No. M-30209 of 2010 (O&M) 2 discharge his legal and pious obligation, the accused issued one cheque in favour of complainant bearing No.230251 dated 28.4.2010 for a sum of Rs.1,00,000/- drawn on Punjab and Sind Bank, Shahbad Markanda, District Kurukshetra. 2. That at the time of issuance of aforesaid cheque, the accused assured the complainant that he is having account No.C.C.178 with Punjab and Sind Bank, Shahbad Markanda and is having sufficient amount to honour the said Cheuqe. 3. That honouring the words of accused the complainant presented the aforesaid Cheque to his banker i.e. Punjab National Bank, Clock Tower, Karnal and the same was sent to the banker of accused i.e. Punjab and Sind Bank, Shahbad Markanda, District Kurukshetra, where from the cheque was returned with the remarks "Funds Insufficient" mentioned as serial no.10 of the memo dated 3.5.2010. 4. That the notice was served upon the accused on 20.5.2010 under registered cover, calling upon him to make the payment of the aforesaid Cheuqe i.e. Rupees 1,00,000/- to the complainant within 15 days of the receipt of notice. The complainant issued notice at the commercial establishment of accused, which was returned with a false report of accused being admitted in PGI, but notice sent at his residential address has been duly received by accused, Crl. Misc. No. M-30209 of 2010 (O&M) 3 but despite passing statutory period, the accused did not pay a single penny to the complainant towards the amount as mentioned in the aforesaid cheque. 5. That from the report, vide memo dated 3.5.2010, issued by the banker of accused, it is ample clear that the accused had issued the aforesaid cheuqe with a specific intention to cheat the complainant, as the accused was having full knowledge that there is no sufficient funds in his account to honour the cheque as such, the accused has committed offence punishable under Section 138/142 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code. 6. That the cheque in question was issued by the accused in favour of complainant at Karnal, which was dishonoured by the banker of accused and intimation-memo regarding dishonour of cheque was received by the complainant at Karnal, within the territorial jurisdiction of this Hon'ble Court, hence this Hon'ble Court has got jurisdiction to entertain and try the present complaint. 7. That the requisite fee is affixed on the complaint. It is, therefore, respectfully prayed that the accused may kindly be summoned, tried and punished for the offences committed by him under Section 138/142 of the Negotiable Instruments Act, in the interest of justice, equity and good conscience.” Learned counsel for the petitioner has submitted that the Crl. Misc. No. M-30209 of 2010 (O&M) 4 petitioner had no dealings with the complainant. Infact the cheque in question had been issued by way of security. In support of his argument, learned counsel for the petitioner has placed reliance on the judgments in the case of M/s. Exports India and another versus State and another, 2007 (4) R.C.R. (Criminal) 300, The Punjab State Cooperative Supply and Marketing Federation Limited Versus M/s Goyal Rice & Oil Mills and others, 2009(4) R.C.R. (Criminal) 612, M/s. Kumar Exports versus M/s. Sharma Carpets, 2009 (1) R.C.R. (Criminal) 478, Ajit Sharma versus Meenu Singh Dhindsa, 2006(2) R.C.R. (Criminal) 652, M.S. Narayana Menon @ Mani versus State of Kerala & Anr. 2006(2) Apex Criminal 531, Kamalammal versus C.K. Mohanan & Anr., 2007(2) R.C.R. (Criminal) 977. After hearing the learned counsel for the petitioner, I am of the opinion that the instant petition deserves dismissal. 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 Crl. Misc. No. M-30209 of 2010 (O&M) 5 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 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 Crl. Misc. No. M-30209 of 2010 (O&M) 6 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 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 complaint reveals that the petitioner had issued the cheque in question in favour of the complainant. However, when the said cheque was presented for encashment the same was Crl. Misc. No. M-30209 of 2010 (O&M) 7 dishonoured with the remarks “Funds Insufficient”. Despite service of notice by the complainant, the petitioner failed to pay the said amount. Left with no other option the complainant filed the complaint. In support of his case complainant led his preliminary evidence and on the basis of the same the trial Court has passed the summoning order. The fact as to whether the cheque in question was issued by way of a security or not can be established by the petitioner only during the course of trial. At this stage, it cannot be said that the complaint is liable to be quashed as the cheque was issued by way of security without any material on record in support of the case. I have gone through the judgments relied upon by the learned counsel for the petitioner. The judgments relied on by the learned counsel for the petitioner fail to advance the case of the petitioner as these are based on different facts. Dismissed. (SABINA) October 12, 2010 JUDGE Anand