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Judgment
Sunil Gaur, J.—This petition has been preferred by petitioners- Inder Mohan Bansiwal and his wife, under Article 227 of the Constitution of India, r/w Section 482 of the Code of Criminal Procedure, 1973 for quashing the order of 15th July, 2008, passed by the Metropolitan Magistrate vide which cognizance of the offence u/s 420/406 /120-B/34 of the IPC is taken against the petitioners on complaint of respondent No. 2 and direction was issued for registration of FIR on the basis of the complaint of respondent No. 2.
The concise stand of the petitioner No. 1 in this petition is that in October, 2004, he approached Harish Gulati, son of respondent No. 2 and took a cash loan of Rs. 12.70 lacs and as a collateral security, petitioner No. 1 gave undated cheques and blank cheques to son of respondent No. 2 and the petitioner initially could not repay the entire loan amount within the stipulated time framed but he had repaid the entire loan amount and Harish Gulati had returned back most of the collateral security cheques to the petitioner but had held back three cheques on the pretext that the same had been lost. However, petitioner received legal notice of 16th May, 2008 u/s 138 of the Negotiable Instruments Act, which was sent by Smt. Raj Rani, mother of Harish Gulati and wife of Respondent No. 2 and the said notice was replied to by the petitioner. In July, 2008, criminal complaint for the offences u/s 420/406/120-B/34 of the IPC was filed by husband of Raj Rani i.e. by respondent No. 2, against the petitioners and vide impugned order of 15th July, 2008, local police was directed to register an FIR on the basis of the aforesaid complaint.
The main contention raised by the learned Senior Counsel for the petitioners is that petitioner No. 1 being the Authorised Dealer of Hindustan Petroleum Company, in the name and style of M/S Bansiwal Service Station, working in association with his wife- Petitioner No. 2, had raised a cash loan of Rupees 12.70 lacs only (Rupees twelve lacs and seventy thousand only) from his friend-Harish Gulati, in lieu of which he gave various undated, a few un-named and others cheques in the name of M/S Dhaula Kuan, as collateral security, and returned the entire amount within couple of months. However, Harish Gulati after receipt of the entire loan amount, returned only six cheques to the petitioner and did not return few other cheques on the pretext that the same had been stolen. On 16th May, 2008, a Legal Notice u/s 138 of the Negotiable Instruments Act, from Ms. Raj Rani, wife of respondent No. 2, was received by the petitioner, alleging that partnership between the petitioners and respondent No. 2 had not been honored and that petitioners had only returned Rupees two lacs thirty thousand only (Rs. 2.30 lacs) out of Rupees fifteen lacs only, which was handed over to petitioners by the respondents in lieu of partnership, and that the three cheques given as security, were dishonoured on 30th April, 2008.
It is further contended on behalf of the petitioners that a reply to the said legal notice of 16th May, 2008 was duly sent on 4th June, 2008 and the learned Metropolitan Magistrate on 15th July, 2008 took cognizance of the complaint of respondent No. 2, giving direction to the police to register an FIR in the matter.
Quashing of the aforesaid complaint, Annexure P-4 as well as setting aside of the impugned order, Annexure P-1, directing registration of the FIR, has been sought in this petition on the ground that no cause of action for filing this compliant has arisen in favour of respondent No. 2 and the complaint, Annexure P-4, is an abuse of process of the court and is being used as a pressure tactic. On behalf of the petitioners, reliance has been placed upon decision of the Apex Court in the case of State of Haryana v. Chaudhary Bhajan Lal and Ors. AIR 1992 (supp) SC 335, to contend that the Complaint (Annexure P-4) does not disclose any offence and the filing of the criminal complaint Annexure P-4 is with the malafide intention.
In the last, it is submitted on behalf of the petitioners that there are no allegations against petitioner No. 2 in the complaint in question, warranting legal action against her.
Learned Senior Counsel for the parties have been heard and the record is perused.
A bare perusal of the Complaint (Annexure P-4) reveals that petitioner No. 1 and respondents No. 2 were having friendly relations and petitioner No. 1 alongwith his wife - petitioner No. 2 had allured respondents No. 2 with a business proposal by projecting that respondents No. 2 will get good return for his money and respondents No. 2 is said to have paid Rupees fifteen lacs to the petitioners and petitioner No. 1 had given a receipt for Rs. 12.70 lacs and the said document is said to have signed by both the petitioners.
This Court in the case of M.M. Monga Vs. Union of India, , has declared that if the allegations in the complaint discloses commission of offence u/s 420 of Indian Penal Code, the dishonor of the cheque and proceedings u/s 138 of Negotiable Instruments Act, 1881 cannot come in the way of the prosecution for the offence of cheating.
The Apex Court in the case of "Nagpur Steel and Alloys Pvt. Ltd. v. T. Radhakrishna @ Rajan and Ors. 1997 SCC (Cri) 1073, has said in unequivocal terms that merely because the offence of cheating was committed during the course of commercial transaction, the High Court was not justified in quashing the complaint of cheating and the allegations made in the complaint are required to be decided on the basis of the evidence led in the criminal complaint case.
In its decision, reported in Usha Ahuja Vs. State of Haryana and Others, , Apex Court has cautioned that inherent powers of the High Court are not required to be exercised even if the criminal complaint u/s 406/408 of Indian Penal Code is filed during the pendency of civil litigation between the parties.
The scope of exercise of inherent jurisdiction vested in this Court u/s 482 of Cr. P.C. has to be within the four corners of the law as reiterated by the Apex Court in its recent verdict in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, , which is as under:
Inherent powers u/s 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
Upon plain reading of the Complaint (Annexure P-4), it cannot be said that prima facie no offence has been committed by the Petitioners. The pendency of a case u/s 138 of Negotiable Instruments Act, 1881 against Petitioner No. 1 at the instance of wife of Respondents No. 2 would not be a ground for quashing this criminal prosecution. Both these remedies are independent of each other and there is no overlapping as the present case is of a version and a counter-version. Which of the version is correct, would be tested during the proceedings of this case before the trial court. It would be pre-mature to jump to a conclusion at this initial stage that the present criminal proceedings are manifestly initiated with malafide intention. Upon perusal of the decision of the Apex Court in the case of State of Haryana v. Bhajan Lal, (supra), I find that the case of the Petitioners does not fall in any of the seven categories carved out in the aforesaid decision.
Viewed from any angle, no case for quashing of the criminal Complaint (Annexure P-4) is made out. The contentions raised herein on behalf of the Petitioners are required to be dealt with at the appropriate stage during the proceedings of the criminal complaint in question. Trial court would, of course, do it, uninfluenced by any observations made in this order.
The legality of the impugned order (Annexure P-1) is required to be gone into as I find that trial court by a cryptic order, has directed for registration of the FIR on the basis of the Complaint (Annexure P-4), this Court in the case of Anupam Bharteeya and Another Vs. State and Others, , has impressed upon the trial courts not to pass orders u/s 156(3) of the Code of Criminal Procedure in a mechanical manner. In Crl. M.C. No. 1734/2005, this Court on 10th August, 2007, has again highlighted that it is the duty of the court seized of an application u/s 156(3) of the Cr. P.C. to at least record that there is sufficient material evidencing commission of the cognizable offence, thereby requiring an investigation to be made through the medium of the local police.
Learned senior counsel for the Respondents No. 2 has fairly stated that strictly speaking, police investigation on the Complaint (Annexure P-4) may not be required but it is desirable as it would facilitate to arrive at the truth in this matter.
I am of the considered view that Respondents No. 2 can very well, on his own, lead evidence in support of the Complaint (Annexure P-4) and can summon the relevant witnesses and expert evidence, if required. Police machinery need not be used to facilitate Respondents No. 2 to prove his case as to arrive at the truth, police aid is not really required.
Finally, this petition is partly allowed to the extent that impugned order (Annexure P-1) directing registration of FIR on the basis of criminal Complaint (Annexure P-4) is set aside being unsustainable. While entertaining this petition, operation of impugned order was stayed. Still, it is made clear that the proceedings pursuant to impugned order, if any, shall come a naught. Trial court is directed to proceed with the criminal Complaint (Annexure P-4) in accordance with the law and to complete the inquiry at the pre-summoning stage, preferably within three months. However, the prayer of the Petitioners for quashing the criminal Complaint (Annexure P-4) is hereby declined.
Before parting with this order, I would like to observe that it would be in fitness of things, if the criminal complaint case proceedings u/s 138 of Negotiable Instruments Act, 1881 and proceedings in pursuance to criminal Complaint (Annexure P-4) are dealt with by one court. It is expected that if either of the parties approaches the District & Sessions Judge-I, Delhi or the concerned District & Sessions Judge, with a prayer for proceeding with the criminal Complaint (Annexure P-4) and criminal proceedings u/s 138 of Negotiable Instruments Act, 1881 initiated against the Petitioners by wife of Respondents No. 2, by one court, then the said prayer would be considered by the concerned District & Sessions Judge, in accordance with the law.
With aforesaid observations, this petition is disposed of.