Gurdeep Singh vs Rajinder Singh

Harmohinder Kaur Sandhu, J.

Gurdeep Singh has filed this petition under Section 482 of the Code of Criminal Procedure for quashing the complaint dated 2221992 Annexure P1 and the order dated 241992 passed by Judicial Magistrate Ist Class, Ludhiana summoning the petitioner under Section 420 of the Indian Penal Code.

Rajinder Singh petitioner filed complaint against the petitioner for an offence under Section 420 of the Indian Penal Code on the allegations that he came in contact with the petitioner during the purchase of plot No. 830 situated in Phase III S. A. S. Nagar and paid him a SL of Rs. 5000/ as commission vide cheque dated 4121991. He was to construct a house on the plot immediately. The petitioner came to Ludhiana at his residence on 6121991 and represented that he was dealing in shuttering material and timber/wood and offered to supply champ timber of `A'' class quality at the rate of Rs. 300/ per cubic feet within 15 days time in the presence of Captain Ujagar Singh, Surjit Singh and K Ranbir Singh. Accepting the representation made by the petitioner as true he gave him a cheque of Rs. 52,500/ for the supply of timber before 20121991. The petitioner did not supply the timber as agreed and also refused to return the amount. On enquiry it was found that he was not dealing in timber and his representation was totally false.

The petitioner alleged that the cheque issued by the respondent was in the name of self and the payment in fact was received by the respondent himself. Had there been any agreement to supply timber them the respondent must have issued a payee account cheque. Earlier thereto there had been some dealings between the parties and there was no question of dishonestly inducing the respondent to deliver a cheque. In fact the respondent handed over th cheque to the petitioner for getting it encashed and delivering the amount to him as he himself was not in a position to go to the bank. The petitioner obliged the respondent by going to the bank, appending his signatures on the back of the cheque, receiving the amount and paying it back to the respondent. The complaint in these circumstances was a clear abuse of the process of the court and it did not disclose the commission of any offence. In the return filed by the respondent it was contended that the facts given in the complaint were correct and self cheque was issued to make immediate payment to the petition as to respondent wanted to utilise the winter vacations commencing from 25121991. Although it was a self cheque yet payment of the amount was made to the petitioner and his signatures were duly obtained on the reverse of the cheque by way of abundant caution.

I have heard the counsel for the parties.

Section 482 of the Code of Criminal Procedure empowers at High Court to exercise its inherent powers to prevent abuse of the Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexations or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the Court to quash the same in exercise of inherent powers under Section 482. In the instant case it is to be seen whether on consideration of the allegations in the light of the statement on oath of the complainant ingredients of an offence under Section 420 of the Indian Penal Code are disclosed or whether the complaint is malafide or vexatious. Admittedly the respondent purchased a plot through the petitioner at Mohali and paid him a sum of Rs. 5000/ as commission. As per allegations made in the complaint, the respondent wanted to construct a house and for that purpose he required timber. The petitioner represented that he was also carrying on the business of supplying timber and agreed to supply him the same at the rate of Rs. 300/ per cubic feet within 15 days. As the respondent wanted to avail winter vacations for the construction of his house so in order to expedite the payment he issued a self cheque and handed over the same to the petitioner. Photostat copy of the cheque is Annexure D2 and on the reverse of the cheque the respondent issued directions to the bank to make a payment of the amount to Gurdeep Singh whose signatures were attested. Acting on the representation of the petitioner the amount was paid to the respondent. The contention of the petitioner that the respondent was unable to go to the bank so issued a self cheque and requested him to bring the money will be dealt with after evidence is led to that effect. At present the return filed by the respondent shows that he himself was present in the bank when the amount was received by the petitioner and the petitioner was not simply deputed to receive the payment of the cheque on behalf of the respondent and these hand over to him. It was argued on behalf of the petitioner that as per allegations made in the complaint the liability qua the petitioner if any was of civil nature and ingredients of the offence under Section 420 of the Indian Penal Code were not spelt out. In support of his contention the learned counsel placed reliance on the case of Shankar Lal and another v. Sunder Lal 1984(1) Criminal Law Reporter 548 but I am of the view that this authority is not applicable to the facts of the present case. In this case the accused had taken money from the complainant with promise to return the same immediately. Later on the accused admitted his liability but did not return the money. It was held that no inference can be drawn that the accused had intention to deceive from the very beginning and no offence under Section 420 of the Indian Penal Code was made out. In the instant case the petitioner made representation that he was running timber business and on his representation an amount of Rs. 52,500/ was alleged to have been paid to him. Later on it was found that in fact he was not running any such business and the representation made by him was false and he had dishonest intention to deceive the petitioner. In the case of Bhagwati Singh v. Gopal Bhushan, 1990(1) Recent Criminal Report 522 it was observed that it is settled law that there need not be any positive evidence of dishonest intention. The complainant can succeed by showing facts and circumstances that requisite dishonest intention existed at the time of the alleged dishonest act. Interalia such an intention can be shown by the subsequent conduct of the accused. It will be prejudging the case if the courts were to undertake an enquiry whether the facts made out justifying inference of the requisite intention or not. It will be for the court to take into consideration the relevant facts and circumstances and form an opinion on the question one way or the other. This case related to the purchase of goods and promise to make payment. The accused did not make payment but contended that goods were returned. It was held that this gave cause to both the civil and criminal action.

In the present case if the allegations made in the complaint and in the preliminary evidence referred to in the summoning order Annexure P2 are accepted as true prima facie offence under section 420 of the Indian Penal Code is disclosed. Prejudging the case of the respondent without affording him reasonable opportunity to substantiate his allegations is not permissible.

For the reasons stated above I find no merit in this petition and dismiss the same. The parties through their counsel are directed to appear in the trial court on 1061993 for further proceedings according to law.