Rajasthan High Court
Inder Kumar More Son Of Shri ... vs State Of Rajasthan on 13 February, 2023
Bench: Birendra Kumar
[2023/RJJP/002346]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 7634/2022
Inder Kumar More Son Of Shri Shankar Lal More, Resident Of
Garh Chowk, Losal, District Sikar (Raj).
----Petitioner
Versus
1. State Of Rajasthan, Through P.P.
2. Pawan Kumar Khetan Son Of Shri Janki Lal Khetan,
Resident Of Khud At Present Ward No. 8, Losal, Police
Station Losal, District Sikar (Raj).
----Respondents
For Petitioner(s) : Mr. Shantnu Bansal
For Respondent(s) : Mr. Deshraj Gosingha, PP
Mr. Akshat Chaudhary
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
Judgment reserved on : 09.02.2023
Judgment pronounced on : 13.02.2023
1. The petitioner has sought for quashment of FIR No.
169/2022 registered with Losal Police Station District Sikar for
offences under Section 420 and 406 IPC at the behest of
respondent No.2.
2. Heard the learned counsels for the parties and perused the
records.
3. According to FIR, the petitioner had taken a loan from
respondent No.2, for his business, to the tune of Rs. 3,50,000/-.
The petitioner handed over a cheque of Rs. 4,00,000/- bearing
cheque No. 138384 to respondent No.2 as refund of the aforesaid
loan amount along with interest. Respondent No.2 placed the
cheque before the Bank on 28.7.2022, however the cheque was
[2023/RJJP/002346] (2 of 5) [CRLMP-7634/2022]
returned on very next day i.e. 29.7.2022 with endorsement that
the Bank Account was already closed on 9.11.2021. Thereafter
respondent No.2 demanded the money from the petitioner and
petitioner allegedly committed abuse and assault and threatened
to falsely implicate in any criminal case. Hence the impugned FIR.
Thereafter, the respondent No.2 instituted a complaint case
also under Section 138 of the Negotiable Instruments Act.
4. Learned counsel for the petitioner contends that since the
FIR does not disclose commission of offences for which the FIR
has been registered, it would be an abuse of process of law to
continue with the FIR, as such same requires to be quashed.
Learned counsel next contends that the FIR has been maliciously
instituted as retaliation to FIR No. 178 dated 21.10.2021
registered with Losal Police Station against respondent No.2 and
others with allegation that on 20.10.2021, respondent No.2 and
others had come to the shop of the petitioner to purchase clothes.
They had purchased, however wanted to take away the clothes
without making payment immediately and for that reason, an
occurrence of abuse and assault took place.
5. From the record, it is evident that the police had submitted
negative report after investigation of FIR No. 178/2021, copy of
the report is at Annexure-3. In that report, the police specifically
reported that respondent No.2 is a business man dealing with
grains and petitioner has a Ganpati clothes and ready-made store.
The police report dated 27.12.2021 further reveals that the
petitioner, about three years back had taken loan of Rs.
8,00,000/- from respondent No.2 at the interest of 1.5 per
[2023/RJJP/002346] (3 of 5) [CRLMP-7634/2022]
hundred and by way of security had issued two cheques of Rs.
4,00,000/- each. The loan amount of one cheque was paid and
the cheque was returned to the petitioner, however another
cheque bearing No. 138384 remained with respondent No.2 due to
non payment of the rest of the loan amount.
6. The respondents have not denied the correctness of the
aforesaid police report, however contends that if the FIR discloses
commission of cognizable offence, the FIR cannot be scuttled at
the threshold. Only for the reason that a civil dispute is also made
out, the criminal prosecution cannot be quashed if the ingredients
of criminal offences are prima facie made out. Learned counsel
contends that since the Bank account was already closed on the
date of issuance of cheque, the petitioner had dishonest intention
that the cheque would be honoured.
7. In Satishchandra Ratanlal Shah Vs. State of Gujarat &
Anr., AIR 2019 SC 1538, the accused had borrowed loan from the
complainant. The loan amount was not refunded, hence a civil suit
was instituted by the complainant of the case. In the fact of the
case, which was identical to the present case, the Hon'ble
Supreme Court said that mere breach of compromise, agreement
or contract does not constitute offence under Section 405 IPC
without there being a case of entrustment.
In the case on hand, the transaction was not of entrustment
of property to get back the same as it is rather it was conscious
advancement of loan with assurance of refund of the same along
with interest. Different reasons may be for non compliance of the
commitment under the agreement between the parties within time
[2023/RJJP/002346] (4 of 5) [CRLMP-7634/2022]
for which appropriate remedy would be there but cannot
necessarily be said that it was a case of dishonest intention.
8. Likewise, no offence of cheating as defined under Section
415 IPC is made out as there is no material to infer that the
petitioner had dishonest and fraudulent intention at any point of
time. The cheque available on record would show that the name
of the payee and the date of issuance has been written in a
different pen than the amount and signature of the drawer.
Moreover, the police report dated 27.12.2021, which is not
disputed, would reveal that the cheque in question was issued,
much prior to the closure of the bank account, as security,
however when it was presented by mentioning the date of
issuance as 28.7.2022, the account was closed, therefore,
dishonest and fraudulent intention of the petitioner cannot be
drawn on the basis of aforesaid material.
9. Learned counsel for the respondent has relied on judgment
of Madras High Court in Kishore Kumar Vs. The Inspector of
Police, Crl.O.P. No. 17540/2019 decided on 9.3.2020 and
judgment of Jammu & Kashmir High Court in Fzyaz Ahmad
Sheikh Vs. Mushtaq Ahmad Khan, CRM (M) No. 280/2021
decided on 15.7.2022 which were rendered in different facts and
circumstances of the case and as such not are applicable in the
facts of the present case narrated above.
10. In view of the discussion above, since the FIR does not
disclose commission of any cognizable offence, continuation of
criminal proceedings would be an abuse of the process of law.
[2023/RJJP/002346] (5 of 5) [CRLMP-7634/2022]
Hence, the impugned FIR and all subsequent proceedings against
the petitioner stands hereby quashed and this petition is allowed.
(BIRENDRA KUMAR),J
BRIJ MOHAN GANDHI /77
Powered by TCPDF (www.tcpdf.org)
