Harvinder Kaur vs Kotal Mahindera Bank Ltd
2022 Latest Caselaw 28 P&H

115                       CRM-M-44817-2021(O&M)                             -1-


       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                                             CRM-M-44817-2021 (O&M)
                                             Date of decision: 05.01.2022


Harvinder Kaur                                                    ...Petitioner

                                    Versus

Kotak Mahindra Bank Ltd.                                       ...Respondent



CORAM: HON'BLE MR. JUSTICE HARNARESH SINGH GILL

Present:-   Mr. Bhupinder Ghai, Advocate for the petitioner.

                  ****

HARNARESH SINGH GILL, J. (ORAL)

Case is taken up for hearing through video conferencing.

Through the present petition, the petitioner seeks quashing of

complaint under Section 138 read with Sections 141 and 142 of the N.I. Act,

filed by the complainant-respondent and pending before the Judicial

Magistrate 1st Class, Chandigarh; summoning order dated 09.12.2020 and all

consequential proceedings arising therefrom.

Learned counsel for the petitioner submits that the complaint in

question was filed on 05.02.2020, whereas the resolution to file the present

complaint was passed on 10.01.2019, but the said resolution does not contain

any averment as regards the authorised person having witnessed the

transaction or possessing due knowledge about the transaction. It is further

submitted that legal notice was issued on 06.01.2020, whereas the complaint

was filed on 05.02.2020; that the cheques in question were given by the

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petitioner to the respondent as security for taking a loan of Rs.22,50,000/-;

that it is settled law that no complaint under Section 138 of the Act, is

maintainable, qua security cheques and that the petitioner has

already repaid a total sum of Rs.24,49,530/-, but the respondent-

complainant has wrongly shown the balance amount as Rs. 3,86,458/-. It is

further submitted that the petitioner has already obtained an order from the

Civil Court at Paunta Sahib, restraining the respondent-complainant from

taking forcible possession of the vehicle in question; that it is settled law that

when taking of the forcible possession of the loaned vehicle has been stayed,

the Bank/financial institution, may initiate appropriate proceedings, but in no

case, can it initiate the proceedings under Section 138 of the Act.

In support of his case, learned counsel for the petitioner relies

upon the judgment of Hon'ble Supreme Court passed in A.C. Narayanan Vs.

State of Maharashtra and another, 2013(4) RCR (Criminal) 306 and the

judgment of this Court in Veena Kakkar Vs. State of Punjab and another,

2021(3) RCR (Criminal) 136.

The pleas raised in the present petition, cannot be a ground to

quash the impugned complaint and consequential proceedings. Whether or

not the petitioner has repaid the entire amount, is a question, which can only

be decided on the basis of evidence led before the trial Court. Still further,

the authorised person having due knowledge of the factum of the transaction

or having witnessed the transaction, is also a matter of evidence.

The Hon'ble Supreme Court in Kaptan Singh Vs. The State of

Uttar Pradesh and others, 2021(3) RCR (Criminal) 840, while relying upon

its earlier decision in Dhruvaram Murlidhar Sonar Vs. State of Maharashtra,

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(2019) 18 SCC 191, has held that when there are serious triable allegations in

complaint, it is improper to quash FIR in exercise of inherent powers of the

High Court under Section 482 Cr.P.C., It was held as under:-

"9.2. In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C., 1973 to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C., 1973, though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C., 1973. Similar view has been expressed by this Court in the case of Arvind Khanna (Supra), Managipet (Supra) and in the case of XYZ (Supra), referred to hereinabove.

9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C., 1973."

As the present case involves the triable allegations, no ground is

made out to quash the impugned complaint and the consequential

proceedings arising therefrom.

In view of the above, the present petition is dismissed.

                                                (HARNARESH SINGH GILL)
05.01.2022                                            JUDGE
Mangal Singh

               Whether reasoned/speaking?          Yes/No
               Whether reportable?                 Yes/No




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