Criminal Misc. No.M.23557 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M.23557 of 2010 Date of decision 08.12.2010. Anil Kumar Goyal and another ...... Petitioners. versus M/s M.L. Aggarwal Hosiery, Lalu Mal Street, Chaura Bazar, Ludhiana ...... Respondents. Criminal Misc. No.M.23580 of 2010 Anil Kumar Goyal and another ...... Petitioners. versus M/s Pawan Readymade Center, Lalu Mal Street, Chaura Bazar, Ludhiana ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Shri O.P.Goyal, Senior Advocate with Miss Shilpa Sahi, Advocate for the petitioner (in both cases) Mr. Arihant Jain, Advocate and Mr. Arun Jindal, Advocate for the respondent. K.C.PURI, J. Criminal Misc. No.M.23557 of 2010 2 By this common order, I intend to dispose of Criminal Misc. No.M.23557 of 2010 and Criminal Misc. No.M.23580 of 2010 as common question of law has been involved in both the cases. For convenience facts are being taken from Criminal Misc. No.M.23557 of 2010. The present petitions have been filed under Section 482 of the Code of Criminal Procedure ( in short – Cr.P.C.) for quashing the complaint No.302/2 dated 23.12.2006 (Annexure P-8) and all subsequent proceedings against the petitioners. The brief facts of the case are that accused firm having business dealings with the complainant firm and had been purchasing readymade garments from it for onward sale in and around Shamli. During the course of such business dealings, accused purchased readymade garments from complainant firm worth Rs.2,02700/- (Rupees Two Lacs twenty seven hundred only) vide bills Nos. 1. Bill No.4128 dated 26.7.2006 for Rs.47755/- (2). Bill No.4246 dated 9.9.2006 for Rs.67710.00 ps.(3) Bill No.4268 dated 16.9.2006 for Rs.48734.00 p. and (4). Bill No.4327 dated 7.10.2006 for Rs.38501.00 p. It has been further alleged that in the discharge of their liability to pay for the purchases made above, accused No.1 Anil Kumar Goyal issued in favour of complainant firm two cheques bearing Nos. (1) 0715879, (2) 0715881 bearing dates 16.10.2006 and 14.10.2006 for Rs.1,00,000/- (One Lac only each) drawn on State Bank of India, Shamli out of account No.01660029531 of accused firm and at the time of issuance of the aforesaid cheques, accused No.1 assured the complainant firm the Criminal Misc. No.M.23557 of 2010 3 encashment of the aforesaid cheques upon their presentation in the bank. Upon the said assurance, the complainant firm presented the aforesaid two cheques for encashment and collection through State Bank of India, Civil Lines, Ludhiana to State Bank of India, Shamli on 31.10.2006. On 31.10.2006, State Bank of India Shamli, returned the aforesaid two cheques unpaid vide their memo dated 31.10.2006 with remarks “Account Closed” meaning thereby that the accused had no money in their aforesaid account to meet the aforesaid cheques. The State Bank of India Shamli, returned three more cheques of the sister concern of the complainant firm namely Messars M.L. Aggarwal Hosiery vide same memo. When the complainant firm made up its mind to get a demand notice issued to the accused, the accused- petitioners sent one servant working in the complainant firm to get the photocopy of the cheque return memo to enable its legal adviser to do the needful regarding the demand notice. The said servant got the memo of the cheque return memo photocopied from Chaura Bazar, Ludhiana but lost the original memo somewhere during the transit from photocopy shop in Chaura Bazar to the office-cum-shop of the complainant firm in Lala Mal street. The Proprietor of the complainant firm Shrimati Ram Kali Devi tried her level best to trace out the original cheque return, memo, but failed and ultimately got registered a DDR No.17 dated 21.12.2006 with P.S. Kotwali, Ludhiana. upon coming to know about the fate of the cheques the complainant firm got issued a demand notice to the accused through its legal adviser calling upon the accused to pay to the complainant firm the amount covered by the cheques within 15 (fifteen) days of the receipt of the notice. It was also made clear to the accused in the same demand notice that Criminal Misc. No.M.23557 of 2010 4 by giving the aforesaid cheques from a cheque book of a closed account, the accused not only committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, but fraudulently and dishonestly induced complainant firm to deliver them (accused) readymade garments against these cheques, which belong to a closed account and thus deceived and duped the complainant firm and thus also committed offence punishable under Section 420 of the Indian Penal Code. The demand notice was sent through registered mail-acknowledgment due on 10th of November, 2006 and through UPC on 11th of November, 2006. The complainant has filed the complaint under Section 138 of the Negotiable Instruments act ( in short - N.I. Act). The trial Court after recording preliminary evidence, summoned the accused-petitioners to stand their trial under Section 138 of the Act. The accused-petitioners have therefore filed the present petitions for quashing of the complainants and the quashing orders on the ground that the cheque book containing 28 blank cheques from cheque No.00715873 to 00715900 have been lost prior to 11.3.2005 as the report was made to State Bank of India, Shamli on 11.3.2005 by the petitioners. The petitioners have also lodged complaint to the Police of Police Station Shamli regarding loss of 28 blank cheques on 11.3.2005. The complainant-respondent has failed to supply any C-forms despite being asked. The cheques are forged because the signatures are not in running hand and there is vast difference between the signatures on the alleged cheques and the real signatures of the petitioner. The lost cheques were in Criminal Misc. No.M.23557 of 2010 5 possession of the respondent. The petitioners are not liable to pay any money. I have heard learned counsel for the parties and have gone through the records of the case. The points raised by the petitioners in the petitions as well as during the course of arguments are disputed questions of fact which can be adjudicated only after leading evidence by both the parties. After examining the amendments in the Negotiable Instruments Act, according to which summary trial procedure is to be followed (Section 138, 143 of the Negotiable Instruments Act and Sections 254, 260 to 264 of the Indian Penal Code) ; relying upon the established law regarding the dishonour of cheques and powers of the High Court under Section 482 Cr.P.C., I am of the view that it will be better for the petitioners to defend themselves in the trial court and if they are so sure of their defence, then they should get themselves discharged or acquitted at the earliest, rather than rushing to the High Court against every order and praying for examining the entire evidence without it being on record of the trial Court, without it having been tested in cross-examination. Any such attempt will be a negation of the amendments and will defeat the very purpose of the repeated amendments. The Hon'ble Apex Court in authority Zandu Pharmaceutical Works Ltd. vs. Mohd.Sharaful Haque, 2005(1) Apex Criminal 75 equivalent to 2004(4) RCR (Criminal) 937 and equivalent to (2005) 1 SCC 122 has inter alia opined as under :- “The inherent power should not be exercised to stifle a Criminal Misc. No.M.23557 of 2010 6 legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.” So, in view of the above discussion, both the petitions are without any merit and the same stand dismissed. However, nothing said hereinabove will tantamount to be an expression on the merits of the main case. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE December 8, 2010 sv