Inder Mohan Bansiwal & Another vs State (Govt. Of Nct Of Delhi) & Anr.
2009 Latest Caselaw 1458 Del

              HIGH COURT OF DELHI : NEW DELHI

           Judgment reserved on: April 08, 2009
         Judgment pronounced on: April 18, 2009


+                      Crl. M.C. No. 2464 of 2008

%      Inder Mohan Bansiwal
       & another                              ...   Petitioners

                       Through: Mr. K. Radhakrishanan, Senior
                                Advocate with Mr. Imtiaz Ahmed
                                and Mrs. Naghma Imtiaz,
                                Advocates

                                Versus

       State (Govt. of NCT of Delhi)
       & Anr.                                 ...   Respondents
                       Through: Mr. Amit Sharma, Additional
                                Public Prosecutor for State
                                Mr. Siddhartha Luthra, Senior
                                Advocate with Mr. Gaurav Gaur,
                                Advocate for Respondent No.2

COARM

Hon'ble Mr. Justice Sunil Gaur

1.     Whether the Reporters of local
       papers may be allowed to see
       the judgment?

2.     To be referred to Reporter or
       not?

3.     Whether the judgment should be
       reported in the Digest?

SUNIL GAUR, J.

1. This petition has been preferred by petitioners- Inder

Mohan Bansiwal and his wife, under Article 227 of the

Crl. M.C. No. 2464 of 2008 Page 1 Constitution of India, r/w section 482 of the Code of

Criminal Procedure, 1973 for quashing the order of 15th

July, 2008, passed by the Metropolitan Magistrate vide

which cognizance of the offence under Section 420/406

/120-B/34 of the IPC is taken against the petitioners on

complaint of respondent No.2 and direction was issued for

registration of FIR on the basis of the complaint of

respondent No.2.

2. The concise stand of the petitioner No.1 in this

petition is that in October, 2004, he approached Harish

Gulati, son of respondent No.2 and took a cash loan of

Rs.12.70 lacs and as a collateral security, petitioner No.1

gave undated cheques and blank cheques to son of

respondent No.2 and the petitioner initially could not

repay the entire loan amount within the stipulated time

framed but he had repaid the entire loan amount and

Harish Gulati had returned back most of the collateral

security cheques to the petitioner but had held back three

cheques on the pretext that the same had been lost.

However, petitioner received legal notice of 16th May,

2008 under Section 138 of the Negotiable Instruments

Act, which was sent by Smt. Raj Rani, mother of Harish

Gulati and wife of Respondent No.2 and the said notice

was replied to by the petitioner. In July, 2008, criminal

Crl. M.C. No. 2464 of 2008 Page 2 complaint for the offences under Section 420/406/120-

B/34 of the IPC was filed by husband of Raj Rani i.e. by

respondent No. 2, against the petitioners and vide

impugned order of 15th July, 2008, local police was

directed to register an FIR on the basis of the aforesaid

complaint.

3. The main contention raised by the learned Senior

Counsel for the petitioners is that petitioner No. 1 being

the Authorised Dealer of Hindustan Petroleum Company,

in the name and style of M/S Bansiwal Service Station,

working in association with his wife- Petitioner No.2, had

raised a cash loan of Rupees 12.70 lacs only (Rupees

twelve lacs and seventy thousand only) from his friend-

Harish Gulati, in lieu of which he gave various undated, a

few un-named and others cheques in the name of M/S

Dhaula Kuan, as collateral security, and returned the

entire amount within couple of months. However, Harish

Gulati after receipt of the entire loan amount, returned

only six cheques to the petitioner and did not return few

other cheques on the pretext that the same had been

stolen. On 16th May, 2008, a Legal Notice under Section

138 of the Negotiable Instruments Act, from Ms. Raj Rani,

wife of respondent No.2, was received by the petitioner,

alleging that partnership between the petitioners and

Crl. M.C. No. 2464 of 2008 Page 3 respondent No.2 had not been honored and that

petitioners had only returned Rupees two lacs thirty

thousand only (Rs.2.30 lacs) out of Rupees fifteen lacs

only, which was handed over to petitioners by the

respondents in lieu of partnership, and that the three

cheques given as security, were dishonoured on 30th

April, 2008.

4. It is further contended on behalf of the petitioners

that a reply to the said legal notice of 16th May, 2008 was

duly sent on 4th June, 2008 and the learned Metropolitan

Magistrate on 15th July, 2008 took cognizance of the

complaint of respondent No. 2, giving direction to the

police to register an FIR in the matter.

5. Quashing of the aforesaid complaint, Annexure P-4 as

well as setting aside of the impugned order, Annexure P-1,

directing registration of the FIR, has been sought in this

petition on the ground that no cause of action for filing

this compliant has arisen in favour of respondent No.2 and

the complaint, Annexure P-4, is an abuse of process of the

court and is being used as a pressure tactic. On behalf of

the petitioners, reliance has been placed upon decision of

the Apex Court in the case of „State of Haryana v.

Chaudhary Bhajan Lal and Others' AIR 1992 (suppl) 1

SC 335, to contend that the Complaint (Annexure P-4) Crl. M.C. No. 2464 of 2008 Page 4 does not disclose any offence and the filing of the criminal

complaint Annexure P-4 is with the malafide intention.

6. In the last, it is submitted on behalf of the petitioners

that there are no allegations against petitioner No.2 in the

complaint in question, warranting legal action against her.

7. Learned Senior Counsel for the parties have been

heard and the record is perused.

8. A bare perusal of the Complaint (Annexure P-4)

reveals that petitioner No.1 and respondents No. 2 were

having friendly relations and petitioner No.1 alongwith his

wife - petitioner No.2 had allured respondents No. 2 with a

business proposal by projecting that respondents No. 2

will get good return for his money and respondents No. 2

is said to have paid Rupees fifteen lacs to the petitioners

and petitioner No.1 had given a receipt for Rs.12.70 lacs

and the said document is said to have signed by both the

petitioners.

9. This court in the case of "M.M. Monga vs. Union of

India & Others", 63 (1996) DLT 665, has declared that if

the allegations in the complaint discloses commission of

offence under section 420 of Indian Penal Code, the

dishonor of the cheque and proceedings under section 138

Crl. M.C. No. 2464 of 2008 Page 5 of Negotiable Instruments Act, 1881 cannot come in the

way of the prosecution for the offence of cheating.

10. The Apex Court in the case of "Nagpur Steel & Alloys

Pvt. Ltd. vs. T. Radhakrishna @ Rajan & Others", 1997

SCC (Cri) 1073, has said in unequivocal terms that

merely because the offence of cheating was committed

during the course of commercial transaction, the High

Court was not justified in quashing the complaint of

cheating and the allegations made in the complaint are

required to be decided on the basis of the evidence led in

the criminal complaint case.

11. In its decision, reported in (1999) 7 SCC 486, (Usha

Ahuja vs. State of Haryana), Apex Court has cautioned

that inherent powers of the High Court are not required to

be exercised even if the criminal complaint under section

406/408 of Indian Penal Code is filed during the pendency

of civil litigation between the parties.

12. The scope of exercise of inherent jurisdiction vested

in this court under section 482 of Cr. P.C. has to be within

the four corners of the law as reiterated by the Apex Court

in its recent verdict in the case of "Inder Mohan Goswami

& Anr. Vs. State of Uttaranchal & Others", AIR 2008 SC

251, which is as under:-

Crl. M.C. No. 2464 of 2008 Page 6 "Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."

13. Upon plain reading of the Complaint (Annexure P-4),

it cannot be said that prima facie no offence has been

committed by the Petitioners. The pendency of a case

under section 138 of Negotiable Instruments Act, 1881

against Petitioner No.1 at the instance of wife of

Respondents No. 2 would not be a ground for quashing

this criminal prosecution. Both these remedies are

independent of each other and there is no overlapping as

the present case is of a version and a counter-version.

Which of the version is correct, would be tested during the

proceedings of this case before the trial court. It would be

pre-mature to jump to a conclusion at this initial stage that

the present criminal proceedings are manifestly initiated

with malafide intention. Upon perusal of the decision of

the Apex Court in the case of State of Haryana vs. Bhajan

Lal, (supra), I find that the case of the Petitioners does not Crl. M.C. No. 2464 of 2008 Page 7 fall in any of the seven categories carved out in the

aforesaid decision.

14. Viewed from any angle, no case for quashing of the

criminal Complaint (Annexure P-4) is made out. The

contentions raised herein on behalf of the Petitioners are

required to be dealt with at the appropriate stage during

the proceedings of the criminal complaint in question. Trial

court would, of course, do it, uninfluenced by any

observations made in this order.

15. The legality of the impugned order (Annexure P-1) is

required to be gone into as I find that trial court by a

cryptic order, has directed for registration of the FIR on

the basis of the Complaint (Annexure P-4), this court in the

case of "Anupam Bharteeya & Anr. Vs. State & Ors.", 121

(2005) DLT 369, has impressed upon the trial courts not

to pass orders under section 156(3) of the Code of

Criminal Procedure in a mechanical manner. In Crl. M.C.

No. 1734/2005, this court on 10th August, 2007, has again

highlighted that it is the duty of the court seized of an

application under section 156(3) of the Cr. P.C. to at least

record that there is sufficient material evidencing

commission of the cognizable offence, thereby requiring

an investigation to be made through the medium of the

local police.

Crl. M.C. No. 2464 of 2008 Page 8

16. Learned senior counsel for the Respondents No. 2

has fairly stated that strictly speaking, police investigation

on the Complaint (Annexure P-4) may not be required but

it is desirable as it would facilitate to arrive at the truth in

this matter.

17. I am of the considered view that Respondents No. 2

can very well, on his own, lead evidence in support of the

Complaint (Annexure P-4) and can summon the relevant

witnesses and expert evidence, if required. Police

machinery need not be used to facilitate Respondents No.

2 to prove his case as to arrive at the truth, police aid is

not really required.

18. Finally, this petition is partly allowed to the extent

that impugned order (Annexure P-1) directing registration

of FIR on the basis of criminal Complaint (Annexure P-4) is

set aside being unsustainable. While entertaining this

petition, operation of impugned order was stayed. Still, it

is made clear that the proceedings pursuant to impugned

order, if any, shall come a naught. Trial court is directed to

proceed with the criminal Complaint (Annexure P-4) in

accordance with the law and to complete the inquiry at

the pre-summoning stage, preferably within three months.

However, the prayer of the Petitioners for quashing the

criminal Complaint (Annexure P-4) is hereby declined.

Crl. M.C. No. 2464 of 2008 Page 9

19. Before parting with this order, I would like to observe

that it would be in fitness of things, if the criminal

complaint case proceedings under section 138 of

Negotiable Instruments Act, 1881 and proceedings in

pursuance to criminal Complaint (Annexure P-4) are dealt

with by one court. It is expected that if either of the

parties approaches the District & Sessions Judge-I, Delhi or

the concerned District & Sessions Judge, with a prayer for

proceeding with the criminal Complaint (Annexure P-4)

and criminal proceedings under section 138 of Negotiable

Instruments Act, 1881 initiated against the Petitioners by

wife of Respondents No. 2, by one court, then the said

prayer would be considered by the concerned District &

Sessions Judge, in accordance with the law.

20. With aforesaid observations, this petition is disposed

of.

Sunil Gaur, J.

April 18, 2009
rs/pkb




Crl. M.C. No. 2464 of 2008                                     Page 10