CRM No. M 8699 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 8699 of 2009 Date of decision: 18.05.2010 ICICI Bank Limited ........ Petitioner Versus Jaswinder Singh .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Sandeep Suri, Advocate for the petitioner Mr. Rajinder Sharma, Advocate for the respondent -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 of the Code of Criminal Procedure for quashing of Complaint No. 89 of 05.04.2003/2005 titled as 'Jaswinder Singh v. ICICI Bank Limited' (Annexure P-1) pending in the Court of JMIC, Amritsar and the summoning order dated 18.07.2008 passed by the Judicial Magistrate Ist Class, Amritsar (Annexure P-6). The aforementioned complaint was filed by the respondent before the Judicial Magistrate Ist Class, Amritsar on 05.04.2003. As per the complaint, “the complainant got financed one TVS Victor bike on dated 04.05.2002 from the accused bank ICICI Bank Limited, Branch Ranjit CRM No. M 8699 of 2009 2 Avenue, Amritsar through the accused No. 4 and during the formalities of finance, the complainant issued post dated cheques out of his account with Punjab and Sing Bank, Chowk Parag Dass, Amritsar as per the demand of the accused and thereafter the delivery of the bike was taken from Universal. After making the payment, the complainant approached the accused No. 4 for the purpose to get the clearance certificate and to return the remaining post dated cheques issued against the finance of the TVS Victor bike and the accused No. 3 informed the complainant to get his documents after a week. But even after a week accused No. 4 failed to supply clearance certificate as well as return the post dated cheques to the complainant. The complainant also got financed another LML Freedom from the accused banker through accused No. 4 and was paying regular instalments against the said bike. But the complainant got surprised when he came to know that his cheque issued for the repayment of the loan as instalment of LML Freedom bike was dishonoured and upon that the complainant enquired about the whole matter and came to know that the accused banker was remain getting the cheque encashed issued against TVS Victor, for which the complete full and final payment has already been made to the accused. Thereafter, the complainant also served legal notice upon all the accused through his counsel on dated 24.02.2003 and again on dated 04.03.2003 respectively. But the accused paid no heed to the genuine requests of the complainant and even after the service of the legal notice dated 24.02.2003, the accused got encashed the cheques wilfully and dishonestly.” While challenging the complaint (Annexure P1) and the CRM No. M 8699 of 2009 3 summoning order dated 18.07.2008 (Annexure P-6), the learned counsel for the petitioner submitted that the summoning order is confusing and contradictory as it is not clear as to which of the accused have been summoned. Secondly, it was argued that the Court had failed to taken into consideration the replies to the legal notices which were duly exhibited by the Court as Exhibited C9 and C10, respectively. The same have also been annexed with this petition as Annexure P-4 and P-5. In the replies, it was specifically stated that the No Objection Certificate as well as the cheque for refund has been prepared and the complainant may collect the same at any given time. The petitioner and the other accused in the complaint were summoned in spite of the fact that no case was made against them in view of the replies to the legal notices. Learned counsel for the respondent, on the other hand, vehemently argued that the conduct of the Bank was dishonest as it got the cheque encashed in spite of knowing that there was no liability upon the complainant/respondent to pay the same. It was also contended by the learned counsel for the complainant that the present petition is not maintainable as the same has been filed on behalf of the Bank whereas, no summoning order has been passed against the Bank. Learned counsel for the the parties have been heard at length. The operative part of the summoning order dated 18.07.2008 reads as under:- “..From the above-said oral as well as oral documentary evidence led on the file by the complainant, which remained uncontested and un-rebutted on the file, a prima facie case against the accused No. 1 and 2 under Section CRM No. M 8699 of 2009 4 420 read with Section 34 of the Indian Penal Code is made out. However, no offence under Section 420/34 of IPC from the crux of evidence whatever is on the record, is made out against the remaining accused. Accordingly, the complaint under Section 420/34 of the Indian Penal code is dismissed against accused No. 1 and 3. Let accused No. 2 and 4 be summoned to face the trial under Section 420 read with Section 34 of the Indian Penal Code for 26.11.2008 on filing PF, copy of complaint and list of witnesses.” It is, therefore, apparent that the same is confusing and contradictory. As such, the summoning order deserves to be quashed even on this ground alone. It is not denied that the accused No. 2, 3 and 4 in the complaint are the employees of accused No. 1, i.e. Bank petitioner herein. Thus, the petitioner-Bank was the most appropriate authority to file the present petition for quashing of the complainant and the summoning order. The petitioner herein is a Multinational Bank duly incorporated under the Companies Act, 1956 having its Principal office at ICICI Bank Towers, Bandra Kurla Complex, Mumbai. The present petition is being filed through Mr. Himedrapal Singh who is the Authorised Representative of the Bank and has been authorised to file and pursue any litigation on behalf of the Bank through a power of attorney duly passed in his name. Thus, there is no merit in the above argument raised by the learned counsel for the respondent in the fact of the present case. The accused-petitioner has been summoned to face the trial under Section 420 read with Section 34 of the Indian Penal Code. Thus, the only question required to be seen, is as to whether an offence under Section 420 of the Indian Penal Code is made out against the present CRM No. M 8699 of 2009 5 petitioner in the facts of the present case. Section 420 of Indian Penal Code reads as under:- “420. Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Legal notices were served by the complainant/ respondent. The same are placed on record as Annexure P-2 and P3 respectively. Both the legal notices are almost same. However, for facility of reference, the operative part of the legal notice (P-3) is reproduced below:- “It is therefore, required by means of this legal notice to return the post dated cheques and to vide clearance certificate of TVS Victor within a period of fortnight from the receipt of this legal notice, failing which my client shall take legal action as advised in the matter, however, my client shall remain free to initiate criminal proceeding under Section 420 and 500 of the Indian Penal Code for cheating and defrauding my client and to defame my client publicly and in that circumstances you will be held responsible for all costs of my client and consequences arising thereof.” Admittedly, both the legal notices were duly replied by the Advocate on behalf of the petitioner. The same have been placed on record as Annexure P-4 and P-5, respectively. Para 3 of the reply (P4) to the legal notice (P-2) reads as under:- CRM No. M 8699 of 2009 6 “Para No. 3 is correct so far as no dues is concerned. My client has prepared the 'No Objection Certificate' for removal of Hypothecation which was prepared on 14.02.2003 along with refund cheque bearing No. 036388 dated 14.02.2003 of ICICI Bank Branch Lawrence Road, Amritsar and your client was informed to collect his NDC and refund cheque by my client. But your client did not turn up to collect the same and has sent notice which is wrong and illegal. It is wrong that my client has any bad intention to cheat and harass your client.” Para 6 of the reply (P-5) to the legal notice (P3) reads as under:- “That para No. 6 is replied in this manner that as and when your client made full payment against the TVS Victor, he was requested to make stop payment in his bank for further clearance of PDC as my client has its office at Mumbai and he has informed it to close its case but it may take time as there is a process to close the case at head office so to avoid any inconvenience, he should inform bankers. But your client did not do so and cheque for the month of Jan,2003 was got encashed during that process of foreclose the case. My client has prepared the No Objection Certificate for removal of Hypothecation which was prepared on 14.02.2003 along with refund cheque bearing No. 036388 dated 14.02.2003 of ICICI Bank Branch Lawrence Road, Amritsar and your client was informed to collect his NOC and refund cheque by my client. But your client did not turn up to collect the same and has sent notice which is wrong and illegal. Now, your client has served this notice to avoid making payment of two instalments which is not possible.” From the above, it is apparent that no objection certificate was CRM No. M 8699 of 2009 7 prepared as earlier as on 14.02.2003 along with refund cheque of the same date. The complainant does not deny that he received the reply to the legal notices. In fact, the same were placed on record by him before the Court vide exhibited C-9 and C-10. It was stated in the reply that “under these circumstances, I request you to suggest your client to collect NOC and refund cheque from my client and withdraw the notice.” In stead of collecting the NOC and the refund cheque, the respondent filed the complaint. In view of the above, no offence under Section 420 of Indian Penal Code can be said to be made out against the petitioner as there is no intention on the part of the Bank to cheat the respondent. As per the documents produced by the complainant, himself, it is evident that the complainant had been informed by the petitioner that the necessary documentation in the form of NOC along with the refund cheque was ready and he was also requested to collect the same. The NOC and refund cheque was not collected for the reasons best known to the complainant. Thus, the filing of the complainant is nothing but an abuse of process of law. In view of the foregoing discussion, the present petition is allowed and the Complaint No. 89 of 05.04.2003/2005 titled as 'Jaswinder Singh v. ICICI Bank Limited' (Annexure P-1) and the summoning order dated 18.07.2008 passed by the Judicial Magistrate Ist Class, Amritsar (Annexure P-6) are quashed. (Nirmaljit Kaur) Judge 18.05.2010 mohan