Dharminder Kumar vs Tilak Raj Sharma

Rekha Mittal, J.—Dharminder Kumar has filed the present petition by invoking the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure (in short ''the Code'') for quashing of complaint titled "Tilak Raj Sharma Vs. Dharminder Kumar" u/s 138 of the Negotiable Instruments Act 1881 (in short ''the Act'') (Annexure P1), summoning order and proceedings emanating therefrom.

The respondent, Tilak Raj Sharma filed the complaint on the allegations that in discharge of legally enforceable debt, the accused (petitioner herein) issued cheque of Rs. 39,000/- dated 22.12.2011 drawn on his account No. 1/77 in the Ropar Central Cooperative Bank, Ropar which got dishonoured on its presentation to the bank with the remarks "Refer to Drawer" vide memo dated 08.02.2012 and the accused failed to make payment of cheque amount despite receipt of statutory legal notice dated 25.02.2012.

Counsel for the petitioner contends that in the year 2006, the respondent filed a complaint against the petitioner for offence punishable u/s 138 of the Act which was later withdrawn by him on 09.02.2011 in view of his statement recorded by the Court on 09.02.2011 (Annexure P3). It is argued with vehemence that as the complainant had already received the amount, subject matter of the complaint which was dismissed as withdrawn on 09.02.2011, there was no occasion for the petitioner to issue the cheque in dispute in discharge of his liability qua the said proceedings. Further submitted that the respondent obtained number of blank signed cheques in connection with purchase of a vehicle and he misused the cheque in dispute by presentation in the bank and thereafter initiated the criminal proceedings. The petitioner filed a civil suit before the Court at Anandpur Sahib for directing the respondent and others to return 18 blank signed cheques including the cheque in dispute and said litigation is pending in the Court.

Counsel for the respondent, on the contrary, has submitted that the statement made by the respondent in the earlier proceedings under the Act does not create any bar against issuance of a cheque by the petitioner in favour of the respondent to discharge his legally enforceable liability. It is further submitted that the disputed questions of fact raised by the petitioner cannot be decided in the proceedings u/s 482 of the Code, therefore, the petitioner should be relegated to raise all available pleas before the trial Court.

I have heard counsel for the parties and perused the records.

Before adverting to the submissions made by counsels in support of their respective claims, it is pertinent to note that the respondent earlier filed criminal complaint No. 275/06/09 titled "Tilak Raj Vs. Dharminder Kumar" for offence punishable u/s 138 of the Act. In the said case, on 09.02.2011, the complainant made a statement and a relevant extract thereof is quoted hereinbelow:-

I have effected compromise with accused and have received amount in question and I do not want to pursue the present complaint and the same may be dismissed as withdrawn. I don''t have in possession of any cheque of accused Dharminder Kumar.

In pursuance of the statement made by the complainant, the Judicial Magistrate concerned passed the following order:-

Present: Complainant in person with counsel.

Complainant got recorded his statement that he has effected compromise with accused and he has received amount in question from accused, so, he does not want to pursue the present complaint and same may be dismissed as withdrawn. Statement of complainant also signed by his counsel. In view of the statement made by complainant, present complaint is hereby dismissed as withdrawn. File be consigned to record room.

The respondent filed the present proceedings before the Judicial Magistrate, Hoshiarpur in 2012 and the complaint is dated 26.03.2012. A relevant extract from para 1 in the complaint is quoted for facility of reference:-

The said complaint was compromised and the accused issued the said cheque in discharge of his above said liability towards the complainant. However, the accused at that time assured the complainant that the said cheque will be encashed and the complainant by believing upon his said assurance, get the said cheque from the accused and compromised the matter in the court at Hoshiarpur.

I find force in the contentions of the petitioner that as the earlier complaint was got dismissed as withdrawn by making a categoric statement that the complainant has received the amount in question from the accused and he is not in possession of any cheque of accused Dharminder Kumar, it is difficult to accept the version of the complainant (respondent) that the cheque in dispute was issued by the petitioner in discharge of his legally enforceable debt due in the earlier complaint filed u/s 138 of the Act regarding the cheque dated 10.04.2006 of Rs. 30,000/-. The plea of the complainant that the accused issued the cheque in dispute in discharge of said liability is patently falsified and belied in view of his statement recorded on 09.02.2011. Had the accused in the earlier proceedings agreed to issue another cheque in discharge of his liability, subject matter of the earlier proceedings, it was difficult for the complainant to agree to such a proposal in view of earlier conduct of the accused that the cheque got dishonoured on presentation to the bank. This apart, had it been true that the parties had arrived at such a compromise that the complainant offered to withdraw the earlier proceedings due to understanding that the accused would issue a fresh cheque for discharge of his liability, there was no occasion for the complainant to make a statement that he had already received the amount in question from the accused because in that eventuality he would have made a statement that the accused had either issued a fresh cheque or promised to issue another cheque in his favour. The complainant in the statement also candidly stated that he did not have in his possession any cheque of accused Dharminder Kumar. This statement goes a long way to show that the cheque in dispute was not issued by the accused at the time when the complainant withdrew the earlier proceedings. It is difficult to believe that the complainant could withdraw the earlier proceedings without ensuring payment of the amount involved in those proceedings. Further, it is highly improbable that the complainant agreed for issuance of a cheque on some future occasion in discharge of liability of the accused qua the complaint which was sought to be withdrawn by the complainant. No doubt, the disputed questions of fact are not amenable to adjudication in proceeding u/s 482 of the Code. At the same time, the Court cannot act as a mute spectator even if it is established on record that the criminal proceedings initiated in the case are nothing but an abuse and misuse of process of Court. In the circumstances discussed above, I have no hesitation to conclude that the criminal proceedings initiated by the respondent u/s 138 of the Act are nothing but misuse of process of law and liable to be quashed to secure ends of justice.

For the aforesaid reasons, the petition is allowed, complaint titled "Tilak Raj Sharma Vs. Dharminder Kumar" u/s 138 of the Negotiable Instruments Act 1881, summoning order and proceedings emanating therefrom are ordered to be quashed.