Palwinder Kaur vs State of Punjab

Rekha Mittal, J.—Through the present petition filed u/s 482 of the Code of Criminal Procedure (in short ''the Cr.P.C.''), the petitioner has approached this Court seeking quashing of complaint No. 030200068502012 dated 19.04.2012 for offence punishable u/s 138 of the Negotiable Instruments Act 1881 (in short ''the Act'') (Annexure P4), summoning order dated 19.04.2012 passed by the Judicial Magistrate Ist Class, Amritsar (Annexure P5) and proceedings emanating therefrom.

Counsel for the petitioner contends that Gurpreet Kaur (complainant) was married to Bikram Singh Pujji, brother of the petitioner on 26.01.2011. There arose marital differences between the complainant and her husband which led to registration of FIR against Bikram Singh Pujji and other family members at New Delhi. In order to resolve the matrimonial dispute, brother of the petitioner came to Amritsar on 30.11.2011 where all the relatives and friends of respondent No. 2 had gathered. They put pressure upon brother of the petitioner and his relatives to settle the matter as per illegal demands of respondent No. 2 and her family members or face the criminal proceedings in view of FIR got registered by the complainant. The petitioner and other family members were coerced to enter into a memorandum of understanding dated 30.11.2011. Since the brother of the petitioner was not carrying any money and his cheque book, the petitioner handed over cheque of Rs. 4,50,000/- to respondent No. 2 which was got encashed by her. Another cheque bearing No. 733992 dated 05.02.2012 in the sum of Rs. 5,50,000/- drawn on State Bank of India, Branch East Mohan Nagar, Amritsar (cheque in dispute) was issued by the petitioner from her account in favour of respondent No. 2 on the condition that it will remain in the custody of the mediator of the parties namely Hira Lal son of Kundan Lal. It was specifically mentioned in the memorandum of understanding (Annexure P1) that respondent No. 2 shall be entitled to encash the cheque after recording first statement in the petition to be filed u/s 13-B of the Hindu Marriage Act (in short ''HMA''). It is argued with vehemence that petition u/s 13-B HMA was never filed by the parties and respondent No. 2 fraudulently presented the cheque for encashment and the same was not honoured. Counsel would submit that the cheque in dispute was not issued in discharge of any legally enforceable debt or other liability, therefore, no offence u/s 138 of the Act is made out and thus the criminal proceedings initiated by respondent No. 2 for the said offence are liable to be quashed.

Counsel for respondent No. 2, on the other hand, argues that the cheque in question was presented on the instructions of brother of the petitioner, who telephonically informed the complainant that due to busy schedule, he was unable to come to Amritsar for filing of petition u/s 13-B HMA in the Court at Amritsar and the cheque in dispute could be collected by the complainant from the mediator Hira Lal and further assured that it will be honoured on its presentation to the bank. It is further argued that respondent No. 2 presented the cheque to her banker in view of the assurance given by her husband which got dishonoured with the remarks ''insufficient funds'' attracting the penal provisions of Section 138 of the Act. It is further submitted that the brother of the petitioner and her family members have wriggled out of the memo of understanding duly executed by Bikram Singh Pujji, leaving the complainant in dilemma, therefore, the petitioner does not deserve indulgence of this Court in exercise of extraordinary jurisdiction u/s 482 Cr.P.C.

I have heard counsel for the parties and perused the records.

It is an admitted position of the case that Bikram Singh Pujji (brother of the petitioner) and Gurpreet Kaur respondent No. 2 entered into a memo of understanding on 30th day of November, 2011 at Amritsar (Annexure A1), in regard to settlement of their marital disharmony. The plea of the petitioner is that said agreement between the parties was the result of duress and coercion, therefore, her brother found it extremely difficult to pay a huge amount of Rs. 68,60,000/- to respondent No. 2. It is not the scope of the present litigation to examine the circumstances under which Bikram Singh Pujji and Gurpeet Kaur entered into memo of understanding, which may be decided in appropriate proceedings, under the HMA. However, it remains a fact that the petitioner issued two cheques of Rs. 4.5 lacs dated 30.11.2011 and Rs. 5.5 lacs dated 05.02.2012 drawn on State Bank of India, Branch East Mohan Nagar, Amritsar as part payment in view of settlement by document (Annexure P1). A relevant extract from para 2 of memorandum of understanding (Annexure P1) is quoted for facility of reference:-

That the first party has handed over a cheque of Rs. 4,50,000/- (Rupees four lacs fifty thousand only) drawn on State Bank of India, Branch East Mohan Nagar, Amritsar dated 30.11.2011 bearing No. 733991 drawn by Smt. Palwinder Kaur daughter of Baldev Singh and real sister of first party in favour of second party which is payable to the second party today onward. The first party has also issued another cheque bearing No. 733992 for Rs. 5,50,000/- (Rupees five lacs fifty thousand only) dated 05.02.2012 drawn on SBI Branch East Mohan Nagar, Amritsar drawn by Palwinder Kaur the real sister of the first party issued in favour of second party and this cheque dated 05.02.2012 shall remain in the custody of mediator of the both parties namely Sh. Hira Lal son of Sh. Kundan Lal. The second party shall be entitled to get this cheque and present for the encashment of this cheque after the recording of first statement in the petition filed U/S. 13-B of the Hindu Marriage Act. In case the first statement in the above said petition is delayed due to any reason, in first case the said cheque shall remain in the custody of mediator Hira Lal and the same shall be handed over to second party on the recording of the first statement/motion in the court of District Judge/Additional District Judge in the above petition. This also worth to mention here that the present memo of understanding shall be binding on the second party subject to encashment of the above stated cheques only. The remaining settlement amount which is Rs. 58,50,000/- (Rupees fifty eight lacs fifty thousand only) shall be paid by the first party to the second party on the day of final settlement/motion when the same is recorded by the parties after appearing before the DJ/ADJ Amritsar where the petition U/s. 13-B of the both parties is pending.

A plain reading of the above extract leaves no manner of doubt that the petitioner issued the aforesaid cheques to facilitate settlement between her brother and Gurpreet Kaur complainant. Respondent No. 2 was entitled to encash cheque bearing No. 733991 of Rs. 4.5 lacs immediately. However, the cheque in dispute bearing No. 833992 for Rs. 5.5 lacs was agreed to remain in custody of the mediator of both the parties namely Hira Lal and the complainant being entitled to receive this cheque and present it for encashment only after recording of statement in first motion in the petition u/s 13-B HMA. Admittedly, there is no agreement in writing between the parties altering the terms and conditions of memo of understanding (Annexure P1). There is no denial that petition u/s 13-B HMA has not been filed between the parties. Again, it is neither open for discussion nor adjudication as to who committed default for failure of the parties in filing a petition u/s 13B HMA.

As per the plea of respondent No. 2, her husband permitted her to receive the cheque in question from the mediator and present the same for encashment. The cheque in dispute was admittedly issued by the petitioner in discharge of liability of his brother towards the settlement which was yet to be carried into effect. Admittedly, the petitioner never authorised respondent No. 2 to receive the cheque from the mediator and present the same for encashment before filing of the petition u/s 13B HMA or recording the statement of respondent No. 2 in first motion. It is also an admitted fact that the criminal proceedings initiated by respondent No. 2 by lodging an FIR at Delhi are still pending.

Keeping in view the recitals in the memo of understanding, I find force in the contentions of the petitioner that the cheque in dispute was not issued by the petitioner in discharge of any legally enforceable debt or other liability of her brother namely Bikram Singh Pujii. Since the cheque in question was not issued in discharge of the aforesaid liability which is one of the pre-requisites for constituting offence punishable u/s 138 of the Act, I find force in the contentions of the petitioners that criminal proceedings initiated by respondent No. 2 under Section138 of the Act are nothing but an abuse and misuse of process of law. I would hasten to add that there is nothing on record to suggest that the petitioner or her brother had taken any advantage under the memo of understanding or got any relief from the Court of law. On the contrary, the order dated 25.04.2012 passed by the Additional Sessions Judge (FTC) West, Delhi while disposing of an application for bail filed by Bikram Singh does not even make reference to the memorandum of understanding and in those proceedings, counsel for Bikram Singh agreed that Bikram Singh shall pay a sum of Rs. 25,000/- towards sustenance of the complainant till the court of competent jurisdiction decides the maintenance and return of articles alleged to be in possession of the applicant.

In view of what has been discussed above, the petition is allowed and criminal complaint No. No. 030200068502012 dated 19.04.2012 for offence punishable u/s 138 of the Act, summoning order dated 19.04.2012 and proceedings emanating therefrom are ordered to be quashed with no order as to costs.