Delhi High Court
State Bank Of Patiala vs Nascent Educational And ... on 30 November, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Crl. M.C. No. 3841/2011
+ Date of Decision: 30th November, 2012
# STATE BANK OF PATIALA ....Petitioner
! Through: Mr. J.S. Lamba, Advocate
Versus
$ NASCENT EDUCATIONAL AND
DEVELOPMENT SOCIETY& ANR. ...Respondents
Through: None
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
ORDER
P.K.BHASIN, J:
This petition has been filed by the petitioner-bank
under Section 482 of the Code of Criminal Procedure, 1973 for
quashing of the criminal complaint filed against it by the
respondent no. 1 herein under Sections 138 of Negotiable
Instruments Act and Sections 420 & 406 of the Indian Penal Code,
1860.
2. The complaint made by the respondent no.1/ complainant
was that the respondent no. 2 herein owed to it a sum of Rs.
1,39,700/- and in discharge of that liability he gave one demand
draft bearing no. 790547 dated 22.2.07 for Rs. 1,39,700/- issued by
State Bank of Patiala, Sanjay Place Branch, Agra. However,
when the same was presented by the respondent no.1 complainant
for encashment the same was received back unpaid on 6.7.07 with
the petitioner bank's remark 'Reported Cancelled in System'.
Thereafter, a legal demand notice dated 4.8.07 was sent by the
respondent no.1 to the petitioner and the respondent no.2 but none
of the them made the payment and, therefore, the respondent no. 1
had to file the aforesaid criminal complaint. Feeling aggrieved by
the order of the Magistrate summoning it as an accused the
petitioner-bank filed the present petition.
3. The learned counsel appearing for the petitioner argued that
the respondent no. 2, who had been engaged by the petitioner-bank
for a short tenure for some job had during that tenure played fraud
and got money transferred from some accounts of the customers of
the bank and the bank draft in question was also got prepared in
that way and, therefore, that bank draft was got cancelled and not
only that the matter was also reported to the police. It was also
contended by learned counsel that on the basis of entire averments
made in the complaint no case for any offence is made out against
the petitioner-bank and all the allegations are against respondent
no.2.
4. Though respondent no.1-complainant had entered appearance
in the matter but when it was taken up for hearing on 6 th
November, 2012 none appeared on its behalf and, therefore, only
counsel for the petitioner-bank was heard.
5. I have perused the complaint annexed with this petition as
annexure P-1. In this complaint the respondent no.1-complainant
after pleading that respondent no.2 was to pay a sum of Rs.
1,39,700/- to it and had accordingly delivered a bank draft for the
said amount but the same was not honoured by the petitioner-bank.
The relevant averments, as far as petitioner-bank is concerned,
were made in para no. 7 of the complaint which is reproduced
below;-
"7. That the accused no.1, by issuing the aforesaid demand
draft in favour of the complainant, despite having the
knowledge that the aforesaid demand draft would not be
encashed on its presentation, thereby the accused no.1 has
committed the offence under section 138 of Negotiable
Instrument Act and the accused no.2 by giving the aforesaid
demand draft to my client with the assurance that the same
would not be encahsed hence the accused persons in
connivance with each other, have committed the offence under
section 138 of Negotiable Instrument Act as well as the offence
of criminal breach of trust and cheating as prescribed under
section 406 and 420 of IPC and hence the accused persons are
liable to be prosecuted for the aforesaid."
6. In my view on the basis of averments made in para no. 7 of
the complaint no case whatsoever is made out for proceeding
against the petitioner-bank either for the offence punishable under
Section 138 of the Negotiable Instruments Act or under Sections
420 or 406 IPC. It is not the case of the complainant that the
petitioner-bank had to make payment of any money to it and in
discharge of that liability it had issued the dishonoured bank draft.
No case under Section 406 IPC is made out since respondent no.1-
complainant had not entrusted any money to petitioner-bank nor a
case under Section 420 is made out against the petitioner-bank
since there are no averments in the entire complaint as to how the
petitioner-bank had cheated the complainant while not honouring
the bank draft which had not been got issued by the complainant
from its money.
7. This petition is, therefore, allowed and the complaint of the
respondent no.1-complainant qua the petitioner-bank or the bank
official who had signed the dishonoured bank draft is quashed.
P.K. BHASIN, J
NOVEMBER 30, 2012
