Neelesh Kumar Verma vs Abhishek Ahirwar

Petitioner has filed this petition under Section 482 of the Cr.P.C being aggrieved by the registration of a complaint Case (NI Act) No.70/18 by the Court of JMFC, Raisen, against him

Facts given rise to this petition, in short, are that complainant/respondent herein filed a complaint under Section 200 Cr.P.C. against the petitioner for the offence punishable under Section 138 of Negotiable Instrument Act, alleging that respondent was in need of Rs.25 Lacs for opening a Private Company for which the petitioner contacted the respondent and asked him to pay Rs.2,50,000/- and proposed to be arrayed as a partner of that company. Respondent agreed for the aforesaid proposal and gave him Rs.2,50,000/-

Thereafter that petitioner neither got the company registered nor returned the money Rs.2,50,000/-. On demand made by him, the petitioner gave a cheque to the tune of Rs.1,60,000/- on 6.12.2017 to the respondent and when respondent presented that cheque to his bank, it was returned unpaid with an endorsement 'in-sufficient fund'. Petitioner was served with a notice, in spite of that, the petitioner did not return the cheque amount to respondent.

Respondent filed a complaint under Section 138 of Negotiable Instrument Act before the Court of Judicial Magistrate First Class, Raisen. Court of Judicial Magistrate First Class, Raisen has registered the complaint case being NO.70/2018 on 26.09.18 and issued notice to the petitioner for appearance. Petitioner has appeared before the court below. Trial court stated the particulars of offences to the petitioner and recorded his plea and case adjourned for complainant evidence.

Being aggrieved by that registration of the complaint, petitioner filed this petition for quashment of the complaint case on the ground that cheque issued to the respondent does not comes within the purview of legally enforceable debt and liabilities because as per the agreement executed between the respondent and the Ministry of Corporate Affairs, Government of India, respondent itself has stated in the clause 4 that by mistake Rs.1,60,000/- was transferred in the account of petitioner and petitioner has already deposited Rs.1,60,000/- in the head of Ministry of Corporate Affairs, Government of India for registration of respondent owned company as Krispay Food Networks Private Limited. Complaint filed by the respondent is a totally an abuse of the process of law and prayed to quash the complaint.

Counsel for the respondent submitted that petitioner prepared a forged document in the shape of agreement displaying himself as a Director of Ministry of Corporate Affairs, Government of India, and signed this agreement as a witness as well as the Director of the Ministry of Corporate Affairs. The respondent relied on this forged agreement. Petitioner took the amount from the respondent and issued a cheque for returning the borrowed amount which was dishonored when presented in the bank.

Counsel for the petitioner objected that the cheque in question, was issued on behalf of the Knote Book Networks Pvt. Ltd. and petitioner signed on that cheque as a Director of that Company. Company has not been made a party. Petitioner is not liable to pay amount. Only company is liable to pay that amount. Director of that Company is necessary party to be impleaded as an accused.

After hearing both the parties, perused the documents filed along with the petitioner, complainant/respondent here in. The respondent pleaded in complaint that the petitioner and respondent are friends and studied together till 12th standard. Petitioner promised to open a Private Company for which Rs.25 Lacs was the estimated cost. Respondent paid Rs.2,50,000/- for becoming a partner of 10% in the said company. Petitioner failed to register company on account of that respondent asked him to return the money. In turn, the petitioner gave a cheque to the tune of Rs.1,60,000/- of his account. Respondent when presented the cheque to the bank, the bank returned the cheque with an endorsement that there is insufficient amount in the account of the petitioner for realisation of the cheque. The petitioner mainly objected that the cheque was issued not for legally enforceable debt and liabilities.

Photocopy of the cheque submitted along with petition perused. There is no dispute that cheque was signed by the petitioner. Petitioner only objected that this cheque was issued on behalf of the Director of the Company. Stamp of the Company inscribed in the cheque is of Knote Book Network Pvt. Ltd., however, petitioner nowhere in the petition, pleaded that he is working as a Director of the Knote Book Network Pvt. Ltd. nor he submitted any documents pertaining to that Knote Book Network Private Limited. Whether petitioner is the Director of that Company and issued the cheque in that capacity  does not make any difference but main issue is that the cheque is signed by the petitioner and issued in favour of the respondent and delivered  it  to  the  respondent,  and  respondent  when  submitted  that  cheque  for realization, it was returned by the Bank with an endorsement that account of the petitioner is not having sufficient funds.

Notice was issued to the petitioner, despite the petitioner did not return the amount within stipulated time therefore, complaint was filed by the respondent under Section 138 of Negotiable Instrument Act against the Petitioner.

After hearing both the parties and perusal of the documents, this Court is not convinced with the argument advance on behalf of the petitioner that the cheque is not issued for the legally enforceable debt and liabilities, because transaction had taken  place for opening of a Company. Hon'ble Supreme Court in the case of State of Haryana & Ors. Vs. Ch. Bhajanlal & ors. [AIR 1992 SC 604] has culled out some important points for quashing of the FIR or complaint, as under:-

"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise.

Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

Where the allegations made in the F.I.R. or complaint are so absured and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the on concerned Act, providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliablity or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

In view of foregoing discussion and considering the guidelines given in above case law, this Court does not find any merits in the case. Consequently, the petition stands dismissed with no order as to costs.