Inderjit Singh Brar and Others vs Sandeep Bansal

Ritu Bahri, J.—This petition u/s 482 Code of Criminal Procedure is for quashing of complaint No. 27 dated 13.3.2010 titled as ''Sandeep Bansal v. Inderjit Singh Brar and Ors.'' under Sections 420, 406, 409, 167, 168, 169, 120-B, 467, 468 and 471 of Indian Penal Code and u/s 138/142 of Negotiable Instruments Act and summoning order dated 12.6.2010 u/s 420 Indian Penal Code passed by Sub Divisional Judicial Magistrate, Nabha.

Brief facts of the case are that the Petitioners and Respondent are having business dealings with each other. The complainant used to supply diesel to the Petitioner Company against payment of money. The Petitioners used to issue post dated cheques to the complainant and when the assured quality and quantity supplied to the Petitioners, the cheque were honoured. A dispute arose between the Petitioners and the complainant with regard to the quality anti quantity of diesel and resultantly, the payment of cheques were got stopped by the Petitioners. The complainant presented the cheques in the bank. The Petitioners instructed the bank to stop payment and the cheques could not be encashed. The complainant issued a notice u/s 138 of Negotiable Instruments Act, thereafter filed a criminal complaint under Sections 420, 406, 409 156, 168, 169, 120-B, 467, 468 and 471 of Indian Penal Code and u/s 138, 142 of Negotiable Instruments Act. On the basis of this complaint, the Sub Divisional Judicial Magistrate, Nabha has summoned the Petitioners to face trial vide order dated 12.6.2010 u/s 420 Indian Penal Code only. Accused had issued nine cheques of Rs. 33,76,547/- with the promise that same shall be encashed. Out of this six cheques were drawn at Axis Bank, Moga and were returned to the complainant with the memo having remarks "Payment stopped by the Drawer" and the accused in connivance with each other have cheated the complainant by issuing those cheques. The Sub Divisional Judicial Magistrate observed that the remedy for dishonour of the cheques With the complainant was u/s 138 of Negotiable Instruments Act, 1881 separately. But the complainant has not chosen to initiate proceedings u/s 138 of Negotiable Instruments Act. In view of the evidence, the accused had been summoned to face trial under-Section 420 Indian Penal Code only.

Reply has been filed on behalf of Respondent. It has been contended that after receiving the diesel from the complainant, the Petitioners issued cheques and intentionally stopped the payment in order to cause loss to the complainant. Huge quantity of diesel for lakhs of rupees was supplied. These cheques were presented. The payment of these cheques was stopped by giving directions to the bank. The Petitioners with criminal intention have enticed the complainant to caught with valuable security with intention not to make payment after issuing the cheques, stopped the payment. They have been rightly summoned vide order dated 12.6.2010 to face trial u/s 420 Indian Penal Code. Learned Sub Divisional Judicial Magistrate, Nabha after applying his judicial mind has summoned the Petitioners u/s 420 Indian Penal Code.

Mr. Deepak Aggarwal, Counsel for the Petitioners has placed reliance upon Ved Parkash Sharma v. Anil Kumar Agarwal and Anr. 2007(3) RCR Cri 960. He has argued that the procedure as envisaged u/s 202 Code of Criminal Procedure has not been conducted by the learned trial Magistrate. The Petitioner is residing at Moga, which is outside the territorial jurisdiction of Nabha Court. It was mandatory for the trial Court to conduct proper inquiry before summoning the Petitioners, who are residing outside the territorial jurisdiction of Nabha. Relies on S.K. Bhowmik v. S.K. Arora and Anr. 2007 (4) RCR Cri 650.

I have heard learned Counsel for the Petitioners and have gone through the case file carefully.

In Ved Parkash Sharma v. Anil Kumar Agarwal and Anr. (supra) the parties had entered into a contract of sate and purchase of welding rods. Two cheques were issued in the year 1983 towards payment of welding rods. These cheques were dishonoured. It was alleged that the Appellant has committed an offence wider Section 406,409,402 and 417 Indian Penal Code. Cognizance was taken against the Appellant and he was summoned. An application was filed by him before the High Court for quashing of the criminal proceedings and the Court vide order dated 03.1.2006 refused to exercise the jurisdiction held that the allegations were factual in nature and could not be adjudicated in Section" 482 Code of Criminal Procedure proceedings. The trial Court was directed to conclude the trial expeditiously. The Supreme Court allowed the appeal and held that only because the cheques were dishonoured, the same wound not mean that there was intention to cheat the complainant. No. offence u/s 417 Indian Penal Code was made out. The complaint u/s 420 Indian Penal Code was quashed. The following ingredients are necessary to make offence of cheating u/s 415 and 420 Indian Penal Code:

Deception of any persons;

Fraudulently or dishonestly inducing any person to deliver any property; or

to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

The ratio of Supreme Court judgment Ved Parkash Sharma''s case (supra) is squarely applicable to the facts of the present case. The complainant was supplier of the diesel to the Petitioners and the cheques, which had been issued, payment of which was stopped by the Petitioners, the remedy before the complainant was to initiate proceedings u/s 138 of the Negotiable Instruments Act. The trial Court order dated 12.6.2010 summoning the Petitioners to face trial u/s 420 Indian Penal Code is liable to be set aside on the ground that there are no ingredients of cheating made out against the Petitioners.

The criminal miscellaneous petition is allowed and the complaint No. 27 dated 13.3.2010 titled as ''Sandeep Bansal v. Inderjit Singh Brar and Ors.'' under Sections 420/406/409/167/168/169/120-B/467/468 and 471 Indian Penal Code and u/s 138/V42 of Negotiable Instruments Act (Annaxure P-2) and the summoning order dated 12.6.2010 u/s 420 Indian Penal Code (Annexure P-3) are quashed with the above observations.