Rajesh Bahal vs Mahindera and Mahindera Financial Services Ltd.

Sabina, J.—This petition has been filed u/s 482 of the Code of Criminal Procedure for quashing of criminal complaint No. 690/2004 dated 14.1.2004 (Annexure P-1) u/s 138 of the Negotiable Instruments Act, 1881 pending in the Court of Chief Judicial Magistrate Sirsa for 14.1.2009 and all the subsequent proceedings in pursuance thereto.

The contents of the complaint (Annexure P-1) read as

That the complainant is engaged in the business of financing and it has been undertaking its business activities through its various branches situated through out India and one of such branch is situated at Sirsa, Tehsil and District Sirsa. Shri Vijay Kumar Bansal is the Branch Manager of complainant at Sirsa and he is well conversant to and fully acquainted with the facts of present complaint and he is also fully competent to file and proceed with the present complaint.

That accused after availing the credit facility to the tune of Rs. 2,85,000/- from complaint, purchased a Tata Indica Car under Hire Purchase Agreement with the complainant.

That as per terms and conditions of the agreement and other loan documents executed by accused, accused was required to repay the principal amount in 47 monthly instalment of Rs. 7885/- along with agreed interest and other charges of complainant.

That accused in order to discharge his aforesaid pre-existing liability towards the complainant, issued a cheque of Rs. 32,045/- dated 5.6.2004, bearing No. 560135 drawn on Punjaab National Bank, rori Bazar, Sirsa, out of his account No. 28132 with the aforesaid bank, in favour of the complainant being the payment of instalment due on that date and handed over the same to the complainant at Sirsa. At that time, accused categorically assured the complainant that on the presentation of said cheque to the bank, the complainant will get the amount.

That complainant while believing upon the promise and assurance given by the accused, entrusted the said cheque to Standard Chartered Bank for the purpose of collection of amount and the banker of the complainant sent the same to the banker of accused for clearance, but the banker of accused returned the aforesaid cheque as unpaid with a memo dated 7.6.2004 bearing remarks '' insufficient funds''. Thereafter, banker complainant, returned the aforesaid cheque as unpaid with memo of banker of accused. In this manner, the aforesaid cheque returned as dishonoured.

That accused at the time of issuing the aforesaid cheques and handing over the same to the complainant had the full and complete knowledge that the amount in his account was insufficient to honour the said cheques and that the said cheque would return unpaid/dishonoured, but in spite of that accused issued these cheques. In this manner, accused committed as offence as contemplated u/s 138 of Negotiable Instruments Act and thus, have make himself liable to punishable thereunder.

That after dishonouring of the above cheque, the complainant got served the legal notice of demand under the provisions of Negotiable Instruments Act upon the accused, through its counsel, Shri Vijay Sharma, Advocate, Sirsa, which was sent through registered post as well as under postal certificate on 18.6.2005. However, despite repeated visits by the postman, the accused did not turn up to receive the registered envelop and thus, the same returned back to the counsel of complainant as undelivered, whereas, the notice sent under postal certificate seems to have been received by the accused, as the same has not been received as undelivered. In this manner, the implied service of notice of demand under the provisions of Negotiable Instruments Act has been effected upon the accused, but in spite of that the accused did not turn up to make payment of the amount under the above cheque. The carbon copy of notice, postal receipt and original registered envelop containing the original notice are unloosed herewith.

That the statutory period of prior mandatory notice upon the accused has since elapsed, but the accused has not turned up to make payment of the amount under the above cheque, therefore, present complaint is being presented without any further delay. The complaint is being filed well within the period of limitation.

Tat the branch office of complainant is situated at Sirsa; the accused availed the financial assistance from complainant at Sirsa; the cheque in question was issued and handed over at Sirsa; the same returned back as unpaid to the complainant at Sirsa and the accused is also resident of Sirsa, District Sirsa, which falls within the local limits of police station of City Sirsa, thereunder, the Hon''ble Court has the jurisdiction to entertain and try the present complaint.

Learned Counsel for the petitioner has submitted that the petitioner had filed a suit for rendition of accounts and the said matter was referred to the Arbitrator. In these circumstances, the proceedings in the present complaint could not continue.

Learned Counsel for the respondent, on the other hand, has submitted that the petitioner was a defaulter and the car in question was recovered from the petitioner and has been sold. Despite the said fact, some of the loan amount still remains to be recovered from the petitioner.

After hearing learned Counsel for the parties, I am of the opinion that the present petition deserves to be dismissed.

In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, , the Apex Court has held as under:

The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers u/s 482, Cr.P.C. Can be exercised by the High Court 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 chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the first information report or the complainant/respondent No. 2, 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR 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 Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd 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.

(6) 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 specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.

(7). Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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 reliability or genuineness or otherwise of the allegations made in the FIR 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.

Admittedly, in the present case, the petitioner had taken loan of Rs. 2,85,000/- from the respondent for purchase of Tata Indica car under Hire Purchase Agreement. The petitioner continued paying the instalment up to 1.6.2004 but thereafter, he defaulted on two dates and the car in question was taken in possession by the complainant. The cheque issued by the petitioner for a sum of Rs. 32,045/- dated 5.6.2004 was presented before the bank for encashment but the same was dishonoured with remarks "insufficient funds".

Keeping in view the fact that the cheque issued by the Criminal Misc. No. M-33766 of 2008 (O&M) 9 petitioner was dishonoured, no ground for quashing of the complaint is made out as it would not be in the interest of justice to scuttle the criminal proceedings at the very threshold.

Accordingly, this petition is dismissed.