Ashish Sharma vs Naveen Goel

Mahabir Singh Sindhu, J

Present petition has been filed under Section 482 Cr.P.C read with Article 227 of the Constitution of India praying for quashing of the complaint no.3032 of 2017 under Section 138 of the Negotiable Instruments Act,1881 (for short 'the Act') along with summoning order dated 14.06.2017 passed by learned Judicial Magistrate Ist Class, Faridabad and order dated 15.01.2018 passed by learned Additional Sessions Judge, Faridabad.

It is argued by learned counsel for the petitioner that as a matter of fact, cheque book was lost and the same has been misused by the complainant-respondent in connivance with bank officials. Pointed reference is made to the First Information Reports vide SO No.430/2014 dated 06.04.2017 LR no. 493325/2017 and SO No.430/2014 dated 10.04.2017 LR No.521479/ 2017.

Heard learned counsel for the petitioner. Perusal of the paper book reveals that respondent/complainant filed a complaint under Section 138 of the Act against the present petitioner regarding the cheque no.000079 dated 31.03.2017 for an amount of `8,05,625/-, which was dis-honoured on 04.04.2017 on account of "insufficient funds" and thereafter the cheque was again presented and returned vide memo dated 01.05.2017. Thereafter, a legal notice dated 24.05.2017 was served upon the petitioner to make the payment within 15 days from the date of receipt of said notice. Since the payment of cheque in question was not made by the petitioner, therefore, complaint was filed before the Court of competent jurisdiction and after recording preliminary evidence, present petitioner was summoned by learned Judicial Magistrate Ist Class, Faridabad vide order dated 14.06.2017 to face trial under Section 138 of the Act. Similar plea that cheque book was lost and FIR in this regard was registered with the police but respondent/complainant in connivance with the bank officials has misused the cheque in question was raised before learned Additional Sessions Judge, Faridabad and the same was negated. Again, learned counsel for the petitioner has tried to justify his contention on the premise that there is no legally enforceable debt as the cheque in question has been misused by the complainant/respondent and FIRs dated 06.04.2017 and 10.04.2017 in this regard were registered with the Delhi Police.

This Court has gone through the contents of the FIR dated 10.04.2017 and column no.4 of the same is extracted here under:-

" 4. ANY OTHER DETAILS

This reference to FIR No. 493325/2017 dated 06.04.2017. I have already lodged FIR for my IDBI cheque book, which was misplaced but today I found that in that IDBI cheque booklet I have also placed to Andhra Bank, NIT Branch, Faridabad (A/C No.180411100002458) 02 cheques bearing No. 000079 & 000080, which were signed by me also mis placed along with that IDBI cheque book. Kindly note this and take necessary action."

Perusal of the contents of clause-4 reproduced above clearly reveals that petitioner has accepted that cheque in question was duly signed by him, but he is trying to regal out from the liability under the garb of FIR dated 10.04.2017 which is subsequent to dis-honour of cheque. Since the plea raised by the petitioner can be available during his defence at the time of trial but, the same cannot be the basis for quashing of the impugned complaint as well as the summoning order.

Although, so far as registration of above FIRs is concerned, that is a matter of record, but what is the fate of the investigation in those FIRs has not been answered by learned counsel for the petitioner despite specific query put by this Court and he has simply shown his ignorance.

It deserves to be recorded that cheque no.000079 dated 31.03.2017 was presented before the banker and the same was dis-honoured on 04.04.2017 i.e prior in time to the lodging of the present FIR by the petitioner, therefore, in the opinion of this Court, the registration of FIR is after thought just to save his skin and put a defence before the learned trial court in the proceedings under Section 138 of the Act.

In view of the above, this Court does not find any merit in the present petition and the same is dismissed.

The aforesaid observations may not be construed as an expression of opinion on the merits of the case.