CRM No. M-13866 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-13866 of 2009 (O&M) Date of Decision:August 23, 2011 Sunil Kumar ...........Petitioner Versus State of Punjab and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mrs.G.K.Mann, Advocate for the petitioner Mr. G.S.Brar, Assistant Advocate General, Punjab Mr.Bikramjit Arora,Advocate for respondent No.2 ** Sabina, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure,1973 for quashing of FIR No. 15 dated 10.1.2008 registered under Sections 420, 406 of the Indian Penal Code (for short `IPC') at Police Station Sadar Amritsar (Annexure P1). The prosecution case, as per FIR (Annexure P1), in brief is that Raman Kumar took a loan of ` 6,25,000/- from the complainant to run his business. As a security, the borrower was required to issue cheque in favour of the complainant. In July, 2007, Raman Kumar and his brother,Sunil Kumar-petitioner came to the house of the complainant and demanded money. The said persons assured the complainant that they will return the amount. Thereafter, the complainant gave ` 6,00,000/- to both the brothers. Raman Kumar gave four cheques to the complainant by way of security. However, the amount in question was not returned back by CRM No. M-13866 of 2009 (O&M) 2 Raman Kumar. When the cheques issued by Raman Kumar were presented for encashment, they were dishonoured by the Bank with the report `insufficient funds'. Learned counsel for the petitioner has submitted that the petitioner is a Science teacher and has been falsely involved in this case due to his relationship with Raman Kumar. In fact, the amount in question had been borrowed by Raman Kumar and four cheques qua the amount in question were also issued by Raman Kumar. The complainant could have filed a complaint under Section 138 of the Negotiable Instruments Act,1881 (for short `the Act') qua dishonour of cheques. The dispute in question was civil in nature as it related to the non-payment of loan amount. During investigation, it was found that the petitioner was innocent. Learned State counsel and counsel for respondent No.2, on the other hand, has submitted that the amount in question had been given to both the brothers. Four cheques had been issued by Raman Kumar by way of security but when the same were presented for encashment, they were dishonoured by the Bank due to insufficient funds. Raman Kumar was absconding. After hearing the learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. It has been held in 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 CRM No. M-13866 of 2009 (O&M) 3 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, 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 CRM No. M-13866 of 2009 (O&M) 4 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 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.” Admittedly, Raman Kumar and petitioner- Sunil Kumar are brothers. A perusal of the FIR reveals that the money in question was required by Raman Kumar for running his business. Initially, in the complaint, it has been mentioned by the complainant that a loan was taken from him by Raman Kumar of ` 6,25,000/- for running his business. However, later on, the complainant has averred that the loan of ` CRM No. M-13866 of 2009 (O&M) 5 6,00,000/- had been given to Raman Kumar and Sunil Kumar. Raman Kumar had issued four cheques by way of security in favour of the complainant. It has transpired, during the course of arguments, that Raman Kumar is not traceable. Complainant has not filed any complaint under Section 138 of the Act qua dishonour of the cheques issued by Raman Kumar. It has also transpired, during the course of arguments, that the wife of Raman Kumar had committed suicide on 10.5.2007 on account of threats given to her by money lenders. During investigation, petitioner was found innocent, on an application moved by his wife for inquiry. Even otherwise, a perusal of the FIR reveals that the petitioner has been involved in this case due to his relationship with Raman Kumar and further because accused Raman Kumar is missing. The cheques in question were issued by Raman Kumar and not by the petitioner. It is evident from the FIR that the business of sale of books and stationery in DAV College for Women was run by Raman Kumar and he required loan for his business. From the FIR, it does not transpire that the petitioner had any concern with the business run by his brother- Raman Kumar. Hence, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law qua the petitioner. Accordingly, this petition is allowed. FIR No.15 dated 10.1.2008 registered under Sections 420, 406 I.P.C. at Police Station Sadar Amritsar (Annexure P1) and all subsequent proceedings arising therefrom are quashed qua the petitioner-Sunil Kumar. ( Sabina ) Judge August 23, 2011 arya CRM No. M-13866 of 2009 (O&M) 6