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The Code Of Criminal Procedure, 1973
The Negotiable Instruments Act, 1881
The Indian Penal Code, 1860
Section 138 in The Negotiable Instruments Act, 1881
Section 138 in The Code Of Criminal Procedure, 1973

Punjab-Haryana High Court
Smt.Kamlesh Barwal And Another vs Jaswant Singh Panwar on 1 October, 2012

CRM-M-5242-2012 (O&M)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M-5242-2012 (O&M).

Date of decision: October 1, 2012.

Smt.Kamlesh Barwal and another

..... Petitioners

Versus

Jaswant Singh Panwar

..... Respondent

CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI PRESENT Mr.M.L.Sarin, Sr., Advocate, with Mr.Sahil Sharma, Advocate,

Dr.Lakshmi Narsimha, Advocate,

Mr.S.D.S.Sukhija, Advocate,

for the petitioner.

Mr.A.R.Takkar, Advocate, for the respondent. M.M.S. BEDI, J. (ORAL)

Petitioners have filed the instant petition under Section 482 Cr.P.C., for quashing of Criminal Complaint No.223 titled 'Jaswant Singh Panwar Vs. Sh.Dattaray and others', dated 29.7.2011, Annexure P-1, pending in the Court of the Judicial Magistrate First Class, SAS Nagar, Mohali, under Section 138 of the Negotiable Instruments Act, the summoning order dated 8.8.2011, Annexure P-2, and all the consequential proceedings emanating therefrom.

It is claimed in the complaint that a deal was finalised with the complainant on one side and all the respondents on ...1

CRM-M-5242-2012 (O&M)

the other side. The work order was for ` 5,049,60/- for the entire Mahasatsang and the terms of payments were that ` 49,000/- was to be paid in advance by RTGS transfer, ` 1,55,960/- was in cash and balance payment was to be made by post dated cheque of 35 days. After completion of Mahasatsang, all the accused issued a cheque dated 3.5.2011, for a sum of ` 3,00,000/- of Union Bank of India, Mohali. On presentation of the said cheque, it was deposited with the Bankers of the complainant but it was dishonoured with remarks 'funds insufficient'. The complainant went to the office of respondents in Phase 3B-II, SAS Nagar, Mohali and met Mr.Dattaray (Rajan) Balighate, who told him that there was some financial problem and that the funds would be transferred to the account of the complainant within a week. The cheque was presented again with the banker but it was again returned unpaid.

The complainant had served a notice under Section 138 of the Negotiable Instruments Act, but it was returned by the postal authorities with a report 'not known/not traceable returned to sender'. The accused persons did not care to make payment of the dishonoured cheque within 15 days as required under law. The Judicial Magistrate First Class, Mohali, summoned all the accused under Section 138 of the Negotiable Instruments Act, for facing trial without attributing specific part to each of the eight accused. The claim of the petitioners is that on receipt of the notice, the petitioners have submitted a reply by registered post ...2

CRM-M-5242-2012 (O&M)

through their Advocate a copy of which has been placed on record as Annexure P-3 informing that the petitioners had not drawn the cheque and that neither the petitioners were connected with the drawer nor there was any connivance on their part with the drawer of the cheque which had been dishonoured.

Without making a reference to the reply, the complaint had been filed.

Mr.M.L.Sarin, learned Senior Advocate, assisted by Mr.Sahil Sharma, has vehemently contended that the criminal complaint Annexure P-1, summoning order dated 8.8.2011 Annexure P-2 and all the proceedings emanating therefrom against the petitioners are totally vitiated and that continuation of proceedings against the petitioners is an abuse of process of the Court. It has been argued that even if the allegations in the complaint are believed to be correct, no offence is made out against the petitioners. As per the allegations in the complaint, the cheque was issued on behalf of M/s Credent Technologies Private Limited and it bears the signatures of Dattaray (Rajan) Balighate, who is respondent No.1 being Director. Respondent Nos.2 to 5, have also been described as the Directors of said Company whereas accused No.6, is described as National Development Head of the Company. It is not required to be determined in the present case whether the prosecution in the present case could be launched against one Director or all the Directors as the said Directors have not opted to ...3

CRM-M-5242-2012 (O&M)

file the petition before this Court on the ground that they are not incharge or responsible for the conduct of the business of the Company.

The short question which is required to be determined in the present case is whether the petitioners could be prosecuted under Section 138 of the Negotiable Instruments Act, when admittedly, they are neither the Directors of the Company which had issued the cheque nor they have appended any signatures on the cheque which was dishonoured on presentation. It is also not the case of the complainant that the cheque had been issued by the petitioners to discharge any liability. As per the provisions of Section 138 of the Negotiable Instruments Act, only that person can be deemed to have committed the offence subject to the other provisions of the Act, who had drawn the cheque on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge of any liability. He could be made liable only if the cheque is returned by the Bank unpaid on account of insufficient funds subject to the provisions of Section 138 (a) (b) & (c) of the Negotiable Instruments Act.

Even if the allegations in the complaint are taken on their face value and accepted in their entirety, no prima facie offence is made out against the petitioners. So far as the various parameters which have been laid down for quashing of FIR or criminal complaint ...4

CRM-M-5242-2012 (O&M)

are concerned, reference can be made to judgment of Hon'ble the Apex Court in case State of Haryana and others Vs. Ch.Bhajan Lal & Ors., AIR 1992 SC 604, laying down the categories of cases in which the High Court may in exercise of powers under Section 226 of the Constitution of India or under Section 482 Cr.P.C., interfere in proceedings to prevent abuse of process of the Court or otherwise to secure the ends of justice. One of the parameters laid down by Hon'ble the Apex Court is that when the allegations made in the complaint even if taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or where allegations made in the complaint and the evidence produced in support of the same do not disclose the commission of any offence and make out a case against the accused, it is open to the High Court in the exercise of extra ordinary inherent powers to quash the complaint or the FIR. Mr.A.R.Takkar, learned counsel for the complainant has vehemently contended that the petitioner has got an alternative remedy of filing a revision petition before the Sessions Court as such, exercise of powers under Section 482 Cr.P.C., is not warranted. He has placed reliance on the judgment of this Court in case Palwinder Raj Singh Vs. The State of Punjab, 2003 (1) RCR (Crl.) 198, wherein a petition under Section 482 Cr.P.C., for quashing of FIR under Sections 391, 506, 148 & 149 IPC, was dismissed on the ground that the summoning order is a revisable order. He has also ...5

CRM-M-5242-2012 (O&M)

cited case Mansa Ram Vs.Sita Devi, 2002 (2) RCR (Crl.) 597, wherein a Single Bench of this Court has observed that the petition under Section 482 Cr.P.C., is not maintainable against the summoning order as revision lies against the same. In both the above judgments of this Curt, the parameters laid down by Hon'ble the Apex Court in case State of Haryana and others Vs. Ch.Bhajan Lal & Ors., AIR 1992 SC 604, have not been considered. Even otherwise, Hon'ble the Apex Court in Punjab State Warehousing Corporation Faridkot Vs. M/s Sh.Durga Ji Traders and others, 2012 AIR (SC) 700, which is a case where this Court had dismissed a petition under Section 482 Cr.P.C., refusing to exercise inherent jurisdiction to set aside the order dismissing criminal complaint in default by the Chief Judicial Magistrate, holding that the dismissal in default of a private complaint amounts to acquittal and against said order a specific statutory remedy exists in the Court and as such, a petition under Section 482 Cr.P.C. cannot be entertained, has observed as under: -

"7.The short question that falls for consideration is whether in the factsituation the High Court was justified in declining to exercise its jurisdiction under Section 482 of the Code?

8. It is trite law that the inherent power of the High Court ought to be exercised to prevent miscarriage of justice or to prevent the abuse of the process of the Court or to otherwise secure the ends of justice. The Court possesses wide discretionary powers ...6

CRM-M-5242-2012 (O&M)

under the Section to secure these ends. In this behalf it would be relevant to refer to the decision of this Court in Jeffrey J. Diermeier & Anr. Vs. State of West Bengal & Anr., RCR (Crl.) 183: 2010 (3) Recent Apex Judgments 437: (2010) 6 SCC 243 wherein the scope and ambit of inherent powers of the High Court under Section 482 of the Code were explained as follows:

"20.............The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.

...................

22. In Dinesh Dutt Joshi v. State of Rajasthan 2001 (4) RCR (Crl.) 429: (2001) 8 SCC 570, while dealing with the inherent powers of the High Court, ...7

CRM-M-5242-2012 (O&M)

this Court has observed thus (SCC p.573, para 6): "6. ...The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases."

In view of above observations, Hon'ble the Apex Court held that dismissal of a petition under Section 482 Cr.P.C., on the ground of availability of alternative remedy in peculiar facts and circumstances of the case had resulted in miscarriage of justice. Availability of alternate remedy is not an absolute bar in entertaining a petition under Section 482 Cr.P.C.

In Dhariwal Tobaco Products Ltd. and others Vs. State of Maharashtra and another, 2009 (2) SCC 370, a petition under Section 482 Cr.P.C., against the summoning order was dismissed by the High Court on the ground of availability of alternative remedy of revision under Section 397 Cr.P.C. Hon'ble the ...8

CRM-M-5242-2012 (O&M)

Apex Court set aside the order observing that a petition under Section 482 Cr.P.C., cannot be dismissed solely on the ground of availability of alternative remedy under Section 397 Cr.P.C., emphasising on the powers under Section 482 Cr.P.C., observing that inherent powers under Section 482 Cr.P.C., can be invoked by an accused in an appropriate case irrespective of that factor and the High Court can exercise the same in a deserving case within the parameters of law.

I have considered the facts and circumstances of the present case in the light of various parameters laid down in Bhajan Lal's case (supra) and in context to the provisions of Section 138 of the Negotiable Instruments Act. Petitioners being neither the signatories nor the Directors of the Company could not have been impleaded as accused especially when there is no specific allegation against them in the complaint or in the record or the documents produced before the trial Court. Continuation of proceedings against the petitioners will be an abuse of process of the Court, as such, the proceedings are liable to be quashed. The petition is allowed. Criminal Complaint No.223 titled 'Jaswant Singh Panwar Vs. Sh.Dattaray and others', Annexure P-1, pending in the Court of the Judicial Magistrate First Class, SAS Nagar, Mohali, under Section 138 of the Negotiable Instruments Act, the summoning order dated 8.8.2011, Annexure P-2, and all the consequential proceedings accruing therefrom qua the petitioners ...9

CRM-M-5242-2012 (O&M)

are hereby quashed. It is made clear that nothing mentioned in this order will prohibit the complainant to continue proceedings against the other accused.

(M.M.S. BEDI)

October 1, 2012. JUDGE rka

...10