Judgment:
Criminal Misc.
not M-30660 of 2009(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc.
not M-30660 of 2009(O&M) Date of decision:
1. 3.2013 Gaurav Sood and another ......Petitioners Versus State of Haryana and another .......Respondents CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.O.P.Hoshiarpuri, Advocate, for the petitioneRs.Mr.Satyavir Singh Yadav, Addl.A.G.Haryana.
None for respondent No.2 **** SABINA, J.
Petitioners have preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No.694 dated 30.12.2008 under Sections 406, 420,120-B of the Indian Penal Code, 1860 (IPC for short) registered at Police Station Sector 5, Panchkula (Annexure P-2) and all the subsequent proceedings arising therefrom.
Prosecution story, as per the FIR, in brief, is that petitioner No.1 was running a restaurant under the name and style of 'Bakers Delite' in the basement of the complainant.
On 10.10.2008, petitioner No.1 borrowed ` 7,00,000/- from the complainant on the pretext that his mother was admitted in the hospital at Ludhiana and her kidney had Criminal Misc.
not M-30660 of 2009(O&M) 2 to be changed immediately.
When the complainant demanded back the money from the petitioner, he gave a cheque issued by his wife to the complainant.
However, when the cheque was presented for encashment, the same was dishonoured due to insufficient funds.
Later on the complainant came to knot that the petitioner had taken money from some other persons also by telling lies.
Learned counsel for the petitioners has submitted that a perusal of the complaint itself revealed that the complainant, if aggrieved, could have filed a suit for recovery against the petitioneRs.Complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short- “ the Act”.) has been filed by the complainant against the wife of petitioner No.1.
None has appeared on behalf of respondent No.2.
Learned State counsel, on the other hand, has opposed the petition.
After hearing learned counsel for the petitioners as well as learned State counsel, I am of the opinion that the present petition deserves to be allowed.
In the case of State of Haryana versus Bhajan Lal,, 1992 Supp (1) Supreme Court Cases 335, 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 under Section 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 Criminal Misc.
not M-30660 of 2009(O&M) 3 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 fiRs.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 fiRs.information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 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 under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis Criminal Misc.
not M-30660 of 2009(O&M) 4 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.”
A perusal of the FIR itself reveals that the dispute between the parties relates to not payment of loan by the petitioners Criminal Misc.
not M-30660 of 2009(O&M) 5 to the complainant and is purely civil in nature.
With regard to dishonour of cheque issued by the wife of petitioner No.1, proceedings under Section 138 of the Act have been initiated by the complainant.
So far as petitioner No.1 is concerned, he had allegedly failed to repay the loan taken from the complainant.
In this regard the complainant could have filed a suit for recovery against the petitioners but no criminal offence can be said to have been committed by the petitioneRs.Hence, in the facts and circumstances of the present case, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law.
Accordingly, this petition is allowed.
FIR No.694 dated 30.12.2008 under Sections 406, 420,120-BIPC registered at Police Station Sector 5, Panchkula (Annexure P-2) and all the subsequent proceedings arising therefrom are quashed.
(SABINA) JUDGE March 01, 2013 anita