Prem Parkash Kansal vs Surendara Steel Rolling Mills

J.S. Sekhon, J.

Prem Parkash accusedpetitioner has invoked the inherent jurisdiction of this court under Section 482 of Cr. PC for quashing the complaint Annexure PI and the order of summoning Annexure P4 of the trial Court for an offence under Section 420 IPC inter alia on the ground that the trial court has not applied its mind to the facts and circumstances of the case while summoning the accused to face the trial for the above referred offence and that the allegations in the complaint do not constitute a criminal liability but the dispute is purely of a civil nature. This petition was admitted on the point of nonapplication of mind by the trial court to. the facts and circumstances of the case while summoning the accused vide order dated 14590.

I have heard the learned counsel for the parties.

The trial court in para 2 of the impugned order Annexure P4 while summoning the accused has observed as under :

"This complaint was again filed on the next date stating therein that the complainant could not attend the court due to some urgent work and filed another complaint on the same facts. He himself has appeared as AWL. The perusal of evidence shows that there is sufficient evidence to summon the accused to face his trial u/s 420 IPC and according he be summoned for 25889 on filing copies of complaint, list of witnesses and PF, within 3 days."

A bare glance through the same leaves no doubt that by necessary implication, it has to be taken that the trial court has considered the evidence of Surinder Kumar complainant who appeared as AWI. This has to be taken as proper application of mind by the trial court by implication, in view of the observation of the Division Bench of this court in Krishana Murari & ors. v. Mohinder Pal, 1983(1) Recent Criminal Reports 21.

The question then arises whether the evidence of Surinder Kumar complainant if taken as a whole would justify in concluding that exfacie case is made out against the accused for an offence under Section 420 IPC. In this regard, it is noteworthy that Surinder Kumar had deposed that the accused firm through its partner Prem Parkash present petitioner had purchased some goods worth Rs. 62065.15 on 241088 and issued three post dated cheques, one of these postdated cheques was dishonoured when presented to the bank with the remarks that there are no funds in the account of the accused. The complainant then contacted the accused who in lieu of the previous cheques had issued one cheque to the tune of Rs. 10,000/ besides undertaking to issue other cheques for the remaining amount lateron. It is mentioned in para 8 of the complaint that this cheque of Rs. 10,000/ was encashed.

Thus under these circumstances, the grouse of the complainant pertains to the non issuing of cheques by the accused regarding the remaining amount. If that is so taken it has to be taken that at the time of the promise or undertaking on the part of the accused on the date when the cheque of Rs. 10,000/ was handed over to the complainant in lieu of earlier three cheques, no consideration had passed. In other words, it can be well said that on that date the complainant was not made to part with anything or valuable security on the basis of that inducement or undertaking of the accused to issue other two cheques for the remaining amount. I this is so then the entire allegations in the complaint, even if taken to be true would not amount, to cheating as defined under Section 415 IPC. Consequently, the present liability of the accused being purely of civil nature, the continuation of the proceedings in pursuance of the complaint as well as summoning order for an offence under section 420 IPC would amount to abuse of the process of the Criminal Court. The above referred complaint and the resultant proceedings. are therefore, ordered to be quashed by accepting this petition.