IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CRIMINAL MISC. PETITION NO. 1578/2007 (Raj Kumar Vs. State of Rajasthan & Ors) Date of judgment : 19.11.2008 HON'BLE MR. C.M. TOTLA, J. Mr. N.L. Joshi for the petitioner. Mr. O.P. Rathi, P.P. Mr. D.S. Dev for respondent no.2 = = = = Petitioner requests quashing of cognizance and registration of case against him vide Magistreal order dated 19.01.05 which affirmed by revisional court order dated 21.09.2007. Brief facts necessary for disposal of petition are that (i) a criminal complaint presented on 30.10.2003 before Magistreal court by respondent no.2 (complainant) forwarded to P.S., and registered FIR resulted in negative FR, then on protest application, recording statements of witnesses, learned Magistrate taking cognizance for the offence of Section 420 and 406 IPC directed warrant of arrest which order is under challenge in this petition. On a criminal complaint initiated by firm D, proprietor of which is alleged to be petitioner, a criminal case against respondent no.2 for the offence of Section 138 N.I. Act is and was already pending on the allegations : (i) Respondent no.2 taking loan of Rs. 3,30,000 for repayment issued cheque No. 244193 of Rs. 3,30,000/- bearing date 20.02.2004 (ii) cheque was dishonoured so after giving notice, the firm through petitioner presented a criminal complaint on 20.03.02 (iii) cognizance taken and case registered for offence under Section 138 N.I. Act against respondent no.2 on 17.04.02. Respondent no.2 on 30.10.03 presented a criminal complaint against two firms ; Shiv Kumar Mangi lal (S) and Durga Trading company (D) alleging (i) both firms are agricultural produce commission agents (ii) R2 since 5-6 years is dealing with firms and used to sell agricultural produce through these firms (iii) petitioner is illiterate (iv) Firm S in the year 2001 telling respondent no.2 of necessity of bank account for sale of agricultural produce to Govt agencies, through sister's son of P (showing him guarantor) got opened a bank account of R and petitioner depositing Rs. 500/- with Oriental Bank of Commerce obtained signatures of petitioner on blank cheque (v) such cheques retained by petitioner (vi) R in January 2002 asked P for payment of amount due to him then petitioner denied of any amount payable from firm S. Also alleged in the complaint of respondent no.2 is that P also obtained amount of payments of agricultural produce deposited by firm D. Respondent further claimed that he never had any dealing with firm D which is owned by petitioner himself and business of both the firms are carried from one and same place and petitioner without consent and exercising fraud got opened bank account and using petitioner's signed blanked cheque himself (petitioner) withdrew the amount of Rs. 3.3 lacs. Further alleged that on the basis of cheque No. 244193 initiated complaint of Section 138 N.I. Act which complaint forwarded to P.S and FIR no. 484/03 registered and negative FR submitted. Learned Magistrate on protest application recording statements vide order dated 19.01.05 has taken cognizance which is under challenge. Learned counsel for the petitioner argued that only as a counter to case of N.I. Act and exclusively as a bargain, proceedings by respondent no.2 are initiated. Argued that on the facts apparent, issuance of process and registering case is abuse of process of court and deserves to be quashed. In support of contention, reliance placed on decisions (i) 2007 AIR SCW 6679 Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & ors (ii) S.B. Criminal Misc. Petition No. 118/2006 Hanumana Ram & ors. Vs. State & Ors (iii) S.B. Criminal Misc. Petition No. 177/2000 S.K. Gulati & ors. Vs. State & anr. Learned counsel for the respondent argued that petitioner is the owner of both the firms and respondent no.2 complainant is an agriculturist himself got opened an account and cheque book with signatures of R on blank cheques retained by petitioner – such is the statement not only of petitioner but also of two witnesses examined under Section 202 and at the stage of taking cognizance rival factual contentions are not to be examined. Also argued that cognizance order is also affirmed by revisional court and this petition is sort of revision for revisional order. Considered. Inherent powers under Section 482 Cr.P.C are to be exercised to do real and substantial justice though very sparingly and with care. Percolating series of judicial pronouncement held that liberty of prosecution is not to be used as an instrument of harassment or with ulterior motive to pressurize the accused. Where the allegations inherently appear such as to on basis of which acting prudently and rationally, no conclusion or sufficient ground of proceeding can be then proceeding are to be quashed depending on the alleged facts and related circumstances et. It is almost a settled law that where the alleged facts accepted at their face value do not make out a case, proceedings are to be quashed. Hon'ble Apex Court clarifying the legal principles in the case of Inder Mohan Goswami (Surpa) held that apparently for extreneous consideration or exclusively for bargain, the proceedings are to be quashed. Similarly, in S.B. Criminal Misc. Petition No.177/2000, the proceedings are quashed. Coming to the instant case, from the complaint of respondent no.2 itself, petitioner is sole proprietor of both the firms S & D and for alleged dishonour of cheque no. 244193 for Rs.3,30,000/-, firm D through its proprietor P submitted criminal complaint on 20.03.02 for offence of N.I.Act – cognizance taken on 17.07.02. As per copy of bank statement submitted by the concerned bank, bank account is opened on 28.06.2000 and after depositing Rs. 500/- the very first transaction is of 07.08.01 depositing Rs. 2 lacs and on the very same date vide cheque no. 244191 is withdrawal of Rs. 2 lacs on 08.02.02 are deposited Rs. 1,30,000/- cash and on February 9th withdrawal to self vide cheque no. 244194 are Rs. 1,30,000/-. Proceedings under Section 138 N.I. Act is in relation to chque no. 244193. As per copy of account, only other transaction other than above is of first depositing Rs. 500 and then accrual of interest in double digit amount. Cheques are of July, 2002 of above numbers. Respondent no.2 filed criminal complaint on 20.10.03 i.e after about three years of the alleged procurement of signed blank cheques by the petitioner and that too after initiation of prosecution of Section 138 N.I. Act. The allegations of the complaint are of keeping blank cheques bearing signatures of respondent and for such a cheque are proceedings under Section 138 N.I. Act, so allegations of the complaint plainly seems to be of nature of defence of Section 138 N.I.Act. On the above facts, taking all these facts together, the proceedings against the petitioner for the offence of Section 420 and 406 IPC tentamounts to abuse of process of court. Accordingly, the petition is allowed. The cognizance order for FIR No. 484/2003 dated 19.01.2005 passed against the petitioner is set aside. (C.M. TOTLA), J.