Punjab-Haryana High Court
Tarsem Kumar Son Of Sh. Bachan Lal Goyal vs Kulinder Singh Sekhon Son Of S. Inderjit ... on 21 January, 2010
Criminal Misc. No. M-11817 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-11817 of 2009
Date of Decision: 21.01.2010
Tarsem Kumar son of Sh. Bachan Lal Goyal, aged 38
years, resident of H. No. 304, Sector 8, Panchkula.
... Petitioner
Versus
Kulinder Singh Sekhon son of S. Inderjit Singh Sekhon,
r/o Ferozepur Road, Faridkot, Tehsil and District
Faridkot.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Anuj Raura, Advocate,
for the petitioner.
Mr. P.S. Brar, Advocate,
for the respondent.
SHAM SUNDER, J.
This petition, under Section 482 Cr.P.C., for quashing complaint, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be called as the 'Act' only) (Annexure P1), the summoning order, dated 18.12.08 (Annexure P2), passed by the Court of Chief Judicial Magistrate, Faridkot, vide which, it summoned the accused, and the subsequent proceedings, arising therefrom, has been filed by the petitioner.
2. The facts, in brief, are that, Tarsem Kumar, accused, in order to discharge his legally enforceable liability, issued two Criminal Misc. No. M-11817 of 2009 2 cheques, to the tune of Rs. 5,000/- each, dated 21.11.08, in favour of Kulinder Singh Sekhon, complainant, on the assurance, that the same, would be honoured, on presentation. However, when the same, were presented, by the complainant, to his banker, the same, were dishonoured, vide memo dated 24.11.08, with the remarks 'Funds Insufficient'. Consequently, the complainant, met the accused, and requested him to make the payment of the aforesaid amount, but, he refused to do so. Thereafter, a legal notice, dated 26.11.08, was served upon the accused, through Registered Post, calling upon him to make the aforesaid payment, within a period of 15 days, from the date of receipt thereof, but to no avail. Ultimately, the complaint under Section 138 of the Act was filed.
3. After recording the preliminary evidence of the witnesses, the Court of Chief Judicial Magistrate, Faridkot, summoned the accused/petitioner, for the offence, punishable under Section 138 of the Act.
4. Feeling aggrieved, the instant petition, has been filed, by the accused-petitioner.
5. I have heard the Counsel for the parties, and, have gone through the record of the case, carefully.
6. The Counsel for the petitioner, has submitted that, though, the petitioner, did not receive any notice, after the cheques, were dishonoured, yet, he deposited the amount of the cheques, in the sum of Rs. 10,000/-, in bank A/c No. 6436, maintained in the name of Kulinder Singh, complainant/respondent, on 13.12.08, vide pay-in- Criminal Misc. No. M-11817 of 2009 3 slip, and he (complainant-respondent), was duly informed, with regard to the same. He has further submitted that since within 15 days, from the date of the alleged issuance of notice, the amount, was paid, and, as such, no cause of action accrued, to the complainant/respondent, to file the complaint. He has further submitted that the complaint, under Section 138 of the Act and the summoning order, thus, being the abuse of the process of the Court, were liable to be quashed.
7. On the other hand, the Counsel for the respondent, has submitted that, no doubt, this amount, was deposited, in the account of Kulinder Singh, but the same related to the future rent. He has further submitted that, even the complainant, was not informed about the deposit of the amount. He has further submitted that, even otherwise, disputed facts, could not be determined, in the petition, under Section 482 Cr.P.C. He has further submitted that, the complaint, was rightly filed, by the complainant.
8. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is a fit case, in which the complaint and the summoning order, qua the petitioner, should be quashed, for the reasons, to be recorded, hereinafter. For constituting the offence, punishable under Section 138 of the Act, it must be proved, that the cheque, was issued, with a view to discharge the legally enforceable liability; the same was dishonoured when presented; and when the statutory notice, was given, the amount of the cheque was not paid, within 15 Criminal Misc. No. M-11817 of 2009 4 days, from the date of receipt of that notice. In the instant case, as stated above, it was not disputed, by the Counsel for the respondent, that the amount of dishonoured cheques, was deposited, by the petitioner, in his account, maintained in the bank. The amount, was deposited within 15 days, from the date of alleged issuance of notice, though, the petitioner, denied the receipt thereof. There is nothing, on record, that the aforesaid amount was paid, in respect of the future rent. Under these circumstances, it could not be said, that the petitioner, committed any offence, punishable under Section 138 of the Act. This case, does not involve any disputed facts, the determination whereof, is required. In these circumstances, the continuation of the complaint, and the summoning order, would amount to sheer abuse of the process of the Court. The same, are liable to be quashed.
9. For the reasons recorded above, Criminal Misc. No. M-11817 of 2009, is accepted. The complaint, under Section 138 of the Act (Annexure P1) and the summoning order, dated 18.12.08 (Annexure P2), passed by the Court of Chief Judicial Magistrate, Faridkot .
21.01.2010 (SHAM SUNDER) Amodh JUDGE