Crl. Misc. No. M-30492 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-30492 of 2009 Date of Decision: October 5, 2010 Kanika Bansal ........Petitioner Versus Naresh Kumar Garg .......Respondent ****** CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. Gorav Kathuria, Advocate, for the petitioner. Mr. Rohit Ahuja, Advocate, for the respondent. SABINA, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of the complaint No.662 of 2009 dated 14.5.2009 (Annexure P-1), under Section 138 of the Negotiable Instrument Act, 1881 (in short 'the Act'), pending in the court of Judicial Magistrate, 1st Class, Faridabad and all consequential proceedings arising therefrom and the orders dated 14.5.2009 and 3.10.2009 (Anexures P-9 & P-10) passed by Judicial Magistrate, 1st Class, Faridabad, whereby the summons and bailable warrants have been issued against the petitioner. The contents of the complaint (Annexure P-1) read as under :- “That the complainant and the accused are well known to each other as the accused used to participate in Mandir. Housing Board, Sector-7 and complainant is also used to participate in Crl. Misc. No. M-30492 of 2009 2 social activities and was attached with the said Temple and was having impression of the Accused in his mind but was not aware with the other activities of the accused. The accused No. 1 is proprietor of M/s Kanika Engineering Works, Faridabad both the accused approached the complainant for advancement of same friendly loan for the purpose of business of the above said firm & to meet some urgent personal requirement and to perform a “Bhagwat Saptah”. Both the accused while approaching the complainant were having bad and dishonest intention to cheat the complainant but on the other hand complainant was not having knowledge of their said intention and other activities of the accused. 2. That both the accused succeeded in reposing confidence in the complaint for repayment of the said loan at the right time i.e. within three months if advanced by complainant and on the assurance of accused No. 1 and 2. The complainant gave a friendly loan of Rs. 10,00,000/- (Rupees Ten Lacs only) to accused No. 1 and 2 on interest. The said loan was given by the complainant to the accused in the following manner:- c. Rs. 4,00,000/- through cheque No. 414947 dated 30.12.2008 drawn at HDFC Bank Limited, in favour of proprietorship concern of accused No. 1 (SAIL Account Kanika Engineering Works). The said cheque, all particulars and vouchers were filled in by Accused. d. Rs. 6,000,000/- was given in cash by the Crl. Misc. No. M-30492 of 2009 3 complainant to the accused. In this way, the accused Nos. 1 and 2 borrowed a total sum of Rs. 10 Lacs from the complainant on 30.12.2008. 3.That both the accused to further gain faith of complainant at the time of taking Rs. 10,00,000/- on that day itself i.e. 30.12.2008 handed. Over two post dated cheques in favour of the complainant bearing no. 241878 dated 20.03.2009 of Rs. 6,00,000/- and cheque No. 241879 of Rs. 4,00,000/- dated 09.03.2009 both drawn on Punjab & Sind Bank, Arya Samaj Road, Nehru Ground NIT, Faridabad and promise to get clear the same on presentation. It the complainant would have knowledge that accused have bad and dishonest intention since inception of not to clear the cheques, to cheat the complainant then complainant have not advanced that amount and have not accepted the post dated cheques and would have not believed in the undertaking of the accused that on presentation of the post dated cheques the same shall be cleared. 4. That the accused No.1 and 2 did not repay the loan amount to the complainant within time inspite of repeated requests made by the complainant. However, the accused No. 1 and 2 as per their undertaking only repaid Rs. 1,00,000/-on account of interest of the said amount to the complainant and for which they issued a Cheque bearing No. 735402 dated 31.01.2009 of Rs. 1,00,000/- drawn on Punjab & Sind Bank, NIT, Faridabad and the same was cleared. 5. That out of the above said cheques issued by the accused No. 1 Crl. Misc. No. M-30492 of 2009 4 and as per assurance and promised of the accused, the complainant got presented one cheque on due date i.e. Cheque bearing No. 241879 of Rs. 4,00,000/- dated 09.03.2009 through his Bankers “Union Bank of India, Sector 7A Faridabad”---- and the said bank sent the said cheque to the banker of the accused, but to the utter surprise of the complainant, the above said cheque returned back as dishonoured with remarks “EXCEEDS ARRANGEMENTS' vide cheque returning Memo processed on 09.03.2009 intimation there of received on 14.03.2009 & Entry thereof in the pass book of complainant made by his banker dated 13.03.2009. 6. That the complainant presented the above said another cheque bearing No. 241878 dated 20.03.2009 of Rs. 6,00,000/- issued by accused No. 1 drawn on Punjab & Sind Bank, Arya Samaj Road, Nehru Ground, NIT, Faridabad through his above said banker “Union Bank of India, Sector 7A, Faridabad”--- per request of accused on 24.03.2009 and the said bank sent the said cheque to the banker of the accused, but the said cheque also returned back as dishonoured by the banker of the accused, with remarks “INSUFFICIENT FUNDS” vide cheque Returned Memo processed on 25.03.2009 intimation thereof received on 10.04.2009 and entry thereof in the pass book of complainant by his banker made on 27.03.2009. 7. That at the time of handing over of the said cheque, the accused assured that the above said cheques would be Crl. Misc. No. M-30492 of 2009 5 definitely got encashed on their presentation and after believing the words of the accused, the complainant presented the same of encashment mentioned above. 8. That the complainant approached several times to the accused again and again to make the repayment of the amount in question but always the accused no. 1 and 2 misbehaved with the complainant rather gave threat to the complainant not to initiate any proceeding against them otherwise the complainant will face dire consequences, litigation and his family life shall be ruined, as the complainant is having three daughters and they also threatened that if the complainant disclose this matter to anybody or to any official then complainant will face “dire consequences” and threatened to life. The complainant also made complaint in this respect to the police but the accused arranged the police officials having no relief to the complainant. 9. That in the circumstances & dishonourment of the cheque the complainant got issued notice of cheque No. 241879 of Rs. 4 lacs dated 09.03.2009 through Sh Ramesh Goel Advocate vide Registered Legal Notice dated 31.03.2009, Registered on same day (within 30 days of dishonourment of the cheque and intimation thereof) which was received by accused on 02.04.2009. The complainant also got issued another one notice through Sh O.P. Parmar, Advocate of Both the cheques i.e. cheque No. 241879, dated 09.03.2009 of Rs. 4 Lacs & cheque No. 241878 dated 20.03.2009 of Rs. 6,00,000/- Crl. Misc. No. M-30492 of 2009 6 (within 30 days of dishonourment of the cheque and intimation thereof) vide Registered Legal Notice dated 01.04.2009, Registered on 02.04.2009 which was received by the accused on 06.04.2009. 10.That the accused failed to make payment of the said cheque amount within 15 days after receiving the notice (upto 17.04.2009 of first notice and upto 21.04.2009 of second notice) rather sent a vague and false reply through their advocate Sh. Kumud Sachdeva dated 11.04.2009. The accused in a preplanned way, after thought to avoid their liability got issued a notice dated 10.04.2009 and filed recovery suit on false and flimsy grounds of their cheque amount of Rs. 1,00,000/- which was paid by them on account of interest towards the amount in question. The complainant got issue reply thereof through their advocate vide reply dated 18.04.2009. The complainant also come to know that the accused and their associated are engaged in developing companies, issuing fake bills and are engaged in different type of activities, after gaining faith of peoples engaged in collection money from them by one or other means and they are so clever that they entangled the innocent peoples in their activities in such a manner, so that inspite of sufferer monetarily and mentally peoples kept mum and said fact is clear from notice of Commissioner Central Excise, Government of India vide reference No. V(AE) 20/97/Eng/2007/791, dated 01.04.2008. The conduct and Crl. Misc. No. M-30492 of 2009 7 person of the accused is also clear from the other Government Department Banker, Sales-Tax Department and the society of the Temple where to forcibly occupy the Mandir, Housing Board, Sector 7, Faridabad they filed civil suits in the court and fate thereof against them. The accused are Pakka Litigants and know the means to tackle the situation. All the said facts come to notice of the complainant when the cheques of the amount in question were dishonoured and accused stated changing their colour and modusvivendi to grab the life earning of the complainant. 11.That the original Documents i.e. cheque amounting to Rs. 4 Lac bearing no. 241879 dated 09.03.2009 is Annexure C-1 Banker's process memo of Union Bank of India, Sector-7, Faridabad dated 09.03.2009 is Annexure C-2, Copy of Legal Notice of Sh. Ramesh Goel Advocate dated 31.03.2009 is Annexure -3, Postal Receipts is Annexure C-4, Reply received dated 11.04.2009 is Annexure C-5, Cheque amounting Rs. 6 Lac bearing no. 241878 dated 20.03.2009 is Annexure C-6, Banker's process memo of Union Bank of India, Sector-7, Faridabad dated 25.03.2009 is Annexure C-7, Copy of one Legal Notice of both the cheques of Sh. O.P. Parmar, Advocate dated 01.04.2009 is Annexure C-8, Postal Receipts are Annexure C-9 & C-10, Reply dated 11.04.2009 is Annexure C-11, A.D. Receipts are Annexure C-12 & C-13, Copy of Notice of the advocate of accused dated 10.04.2009 is Annexure C-14 & reply thereof dated 18.04.2009 is Annexure Crl. Misc. No. M-30492 of 2009 8 C-15, Postal receipts is Annexure C-16 copy of notice of commissioner Central Excise dated 01.04.2008 is Annexure C- 17, copy of acknowledgment / undertaking of accused in P.P. Sector- 7, dated 28.04.2009 is Annexure C-18 but the accused did not turned up for compromise on 1.05.2009 as per said undertaking. 12.That in view of the facts mentioned in this complaint the accused have committed an offence punishable under section 138, 141 and 142 of the Negotiable Instruments Act, read with Section 420 of IPC and they are liable to be punished for the same. 13.That the complainant and accused are residing, amount in question was borrowed by the accused from the house of complainant and post dated cheques in question were handed over by the accused at that time itself, amount in question was also repayable, the banker of the complainant is situated, the cheques in question were dishonoured and entire series of cause of action has arisen in favour of complainant within the Jurisdiction of P.S. Sector-7, Faridabad which fills in the Territorial Jurisdiction of this Hon'ble Court, hence this Hon'ble Court has got jurisdiction to entertain and try the present complaint. 14.That no previous complain in respect of the claim in question has been previously instituted or decided by any court of competent/limited jurisdiction. 15.That proper court fees has been affixed on the complaint. Crl. Misc. No. M-30492 of 2009 9 Prayer:- It is therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to:- a. Take cognizance of the complaint against the accused above named under the relevant provisions of law. b. Issue process against the accused under the appropriate provision of law. c. Try and punish the accused above named as per the relevant provisions of law. d. Direct the accused above named to pay to the complainant the sum equivalent to twice the amount of the cheques in question. e. Pass such other further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” Learned counsel for the petitioner has submitted that the cheque in question was issued by the husband of the petitioner, who was the sole incharge of the business. Petitioner was not running the business or managing the affairs of the firm and hence could not be proceeded under Section 138 of the Act. In support of his arguments, learned counsel for the petitioner has placed reliance on the judgment in the case of Raghu Lakshminarayanan Versus M/s. Fine Tubes (S.C.) 2007 (2) R.C.R. (Civil) 728, wherein it was held that a proprietary concern is only the business name in which the proprietor of the business carries on the business. Learned counsel for the respondent, on the other hand, has Crl. Misc. No. M-30492 of 2009 10 submitted that the petitioner as well as her husband had approached the complainant for advancement of loan. However, the cheque had been issued by the husband of the petitioner. Despite legal notice the petitioner as well as her co-accused had failed to re-pay the amount. In support of his argument learned counsel for the respondent has placed reliance on the judgment in the case of S.V. Muzumdar & Ors. Vs. Gujrat State Fertilizer Co. Ltd. & Anr. 2005 (2) Civil Court Cases 335 (S.C.), wherein the Apex Court in paras 8 and 9 of the judgment has held as under :- 8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of business is to be adjudicated on the basis of materials to be placed by the parties. Sub section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial. 9. Under Scheme of the Act, if the person committing an offence under section 138 of the Act is a company, by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty Crl. Misc. No. M-30492 of 2009 11 of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused.” After hearing the learned counsel for the parties, 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 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 Crl. Misc. No. M-30492 of 2009 12 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 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 Crl. Misc. No. M-30492 of 2009 13 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.” In the present case, a perusal of the complaint reveals that allegations have been levelled against the petitioner as well as her husband qua advancement of loan to them. In these circumstances, at this stage it would not be just and expedient or in the interest of justice to quash the criminal proceedings at the very threshold. Both the parties are required to lead their evidence in support of their pleas. Accordingly, the judgment relied on by the learned counsel for the petitioner fails to advance the case of the petitioner as it is based on different facts. Dismissed. (SABINA) October 5, 2010 JUDGE Anand