Kuldeep Tomar vs State of Punjab and Another

Augustine George Masih, J.—Prayer in this petition is for quashing of FIR No. 113 dated 12.08.2009 under Sections 420, 467, 468 and

471 IPC registered at Police Station Sadar Nabha, District Patiala (Annexure P-1) and all consequential proceedings arising therefrom. It is the

contention of the counsel for the petitioner that the registration of the present FIR is an abuse of process of law especially when it is a case where

cheque, which was handed over to the complainant, has been returned by the bank by endorsing that the signatures do not tally. He contends that

the remedy of initiating proceedings u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the 1881 Act'') is available to the

complainant and the present FIR has been got registered against the petitioner after the limitation to avail the said remedy stood expired. In support

of this contention, counsel for the petitioner has placed reliance on the judgment of this Court in the case of Charanjit Singh Chawla Vs. State of

Punjab, and reliance has also been placed on the judgment of the Hon''ble Supreme Court in the case of Veer Prakash Sharma Vs. Anil Kumar

Agarwal and Another, to contend that where there is an alternate remedy available, inception of criminal proceedings for the same cause of action

is not maintainable.

On the other hand, counsel for the respondent contends that a bare perusal of the FIR clearly reveals that from the very inception the intention of

the petitioner was to cheat the complainant. As is apparent from the FIR itself that the petitioner had issued a fictitious cheque to the complainant

and had put signatures of some other person, which clearly indicates that the intention was to cheat the complainant and not otherwise. The

ingredients of the offence having been fully incorporated in the FIR and the offence clearly apparent therefrom on the bare reading thereof, the

prayer made by the counsel for the petitioner cannot be accepted for quashing of the FIR. He further contends that as per the judgment of the

Hon''ble Supreme Court in the case of Raj Kumar Khurana Vs. State of (NCT of Delhi) and Another, ], has on consideration of Section 138 has

explained and laid down as to why and under what circumstances proceedings u/s 138 of the 1881 Act can be initiated and if those ingredients are

not found to be there, the continuance of the proceedings u/s 138 of the 1881 Act is not sustainable. It is the further contention of the counsel for

the respondent that the investigating agency during its investigation had sent the cheque to the Forensic Science Laboratory, Chandigarh for

comparing the signatures on the cheque with the standard (admitted) signatures of the petitioner and in the report it has been found that the said

signatures are not of the petitioner or has been intended to disguise to be of a different author which clearly suggests that the forgery has been

committed by the petitioner and the offence u/s 420 IPC is also made out as the intention is apparent. Accordingly, it is prayed that the present

petition be dismissed.

I have heard learned counsel for the parties and gone through the records of the case.

According to the FIR, complainant received a phone call from his brother-in-law (sister''s husband) Ved Parkash Gupta on 30.03.2009 asking

him to pay an amount of Rs. 2,25,000/- in cash to petitioner Kuldeep Tomar and his brother Deepak Tomar, who would on receipt of the

payment issue him a cheque of the said amount, which could be encashed by him within a period of one week. Petitioner-Kuldeep Tomar along

with his brother Deepak Tomar came at his shelter of the complainant and demanded a sum of Rs. 2,25,000/- which was handed over to them.

On receipt thereof a cheque bearing No. 006228 dated 06.04.2009 was given to the complainant by Kuldeep Tomar by putting his signatures on

the cheque. When the cheque was presented in the bank, the same was returned with the remark that the signatures were not matching with the

bank record. Thereafter, when the petitioner and his brother were approached by the complainant through his brother-in-law Ved Parkash, who

talked to the petitioner to which the petitioner replied that he had cheated them and now he will not return the money. FIR was got registered on

this by the complainant and after the challan was presented on completion of the investigation, the petitioner has approached this Court for

quashing of the FIR and all consequential proceedings arising therefrom.

Perusal of the FIR itself clearly indicates the intention of the petitioner to cheat the respondent as in the FIR it has been mentioned that the

response of Kuldeep Tomar when he was asked to return the money was that he had cheated the complainant and therefore, he would not return

the amount. By putting different signatures on the cheque by the petitioner, which were not as per the bank record, itself further indicates the

intention of the petitioner of defrauding the complainant. During the investigation when the cheque was sent for the comparison of the signatures to

detect forgery, this report has come against the petitioner and according to the said report, the same is not tallying with the standard signatures of

the petitioner. That apart in the light of the judgment of the Hon''ble Supreme Court in the case of Raj Kumar Khurana Vs. State of (NCT of

Delhi) and Another, where while considering the Section 138 of the 1881 Act, Hon''ble Supreme Court in para 11 has held as follows:-

Section 138 of the Act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict

construction. [See R. Kalyani Vs. Janak C. Mehta and Others, and DCM Financial Services Ltd. Vs. J.N. Sareen and Another, . Such a penal

provision, enacted in terms of the legal Fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may

either be: (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount

arranged to be paid from that account by an agreement made with that bank. Before a proceeding thereunder is initiated, all the legal requirements

therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been

complied with.

The parameters for invoking the provisions of Section 138 of the Act, thus, being limited, we are of the opinion that refusal on the part of the bank

to honour the cheque would not bring the matter within the mischief of the provisions of Section 138 of the Act.

In the light of the above, the contention of the counsel for the petitioner cannot sustain that proceedings u/s 138 of the 1881 Act could have

been initiated against the petitioner by the respondent as the cheque was not dishonoured because of insufficiency of funds but for the reason that

the signatures did not tally with the standard signatures of the petitioner and as per the above judgment of the Supreme Court no proceedings u/s

138 of the 1881 Act could be filed in this case.

The judgment relied upon by the counsel for the petitioner in Veer Prakash Sharma Vs. Anil Kumar Agarwal and Another, the Hon''ble

Supreme Court came to the conclusion that there was no allegation of any inducement or that the accused had an intention to cheat the complainant

from the very inception on the perusal of the complaint, which is not the situation in the case in hand. Charanjit Singh Chawla''s case (supra) was

decided by this Court prior to the judgment of the Hon''ble Supreme Court in the case of Raj Kumar Khurana Vs. State of (NCT of Delhi) and

Another, . Therefore, these judgments would not help the case of the petitioner. In view of the above, finding no merits in the present petition, the

same stands dismissed.