Punjab-Haryana High Court
Rajesh Khanna And Another vs State Of Haryana And Another on 19 December, 2012
Author: Sabina
Bench: Sabina
Crl. Misc. M No. 7486 of 2011(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Misc. M No. 7486 of 2011 (O&M)
Date of Decision:December 19, 2012
Rajesh Khanna and another ..........Petitioners
Versus
State of Haryana and another ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Rajesh Sethi,Advocate for the petitioners.
Mr.Satyavir Singh Yadav, Additional Advocate General,
Haryana
Mr.Jaswant Jain,Advocate for respondent No.2
**
Sabina, J.
Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure,1973 (for short `Cr.P.C.) seeking quashing of the Criminal complaint bearing No. 120 of 2005 (Annexure P5) titled as "Rajinder Sharma vs. Rajesh Khanna and others" pending in the Court of Judicial Magistrate Ellenabad under Sections 193, 196, 420, 467,468, 471, 506 and 120-B of the Indian Penal Code, 1873 (`IPC' for short) and summoning order dated 5.9.2008 (Annexure P8) along with all consequential proceedings arising thereto .
Learned counsel for the petitioners has submitted that Crl. Misc. M No. 7486 of 2011(O&M) 2 on similar allegations, respondent No.2-Rajinder Sharma had earlier filed a complaint against the petitioners and others. The said complaint was dismissed by the trial Court vide order dated 28.3.2006 (Annexure P4). Thereafter, the present complaint on the same allegations had been filed against the petitioners without disclosing the factum of dismissal of the earlier complaint. Hence, the complaint in question as well as the summoning order dated 5.9.2008 (Annexure P8) were liable to be quashed. In support of his arguments, learned counsel has placed reliance on Hira Lal and others vs. State of UP and others 2009(11)SCC 89 wherein it was held as under:-
"14.The order of learned ACJM in his order dated 2.4.2003 is not a cryptic one. Reasons have been assigned in support thereof. In a situation of this nature, in our opinion, a second complaint petition could not have been filed. Strong reliance has been placed by Mr. Singh on a decision of this Court in Mahesh Chand v. B.Janardhan Reddy and another., 2003(1) RCR(Criminal) 420:[(2003)1SCC734], wherein it was opined that second complaint was not completely barred in law. This Court, however, in that decision itself held that the second complaint can lie only on fresh facts and/or if a special case is made out therefor, stating:
"19. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely Crl. Misc. M No. 7486 of 2011(O&M) 3 barred. It is settled law that there is no statutory bar in filling a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 Criminal Procedure Code may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances,namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."
15. The second complaint petition filed by the third respondent does not disclose any such exceptional case. It reiterated the same allegations as were made in the first complaint petition. No fresh fact was brought to the notice Crl. Misc. M No. 7486 of 2011(O&M) 4 of the court. The core contention raised in both the complaint petitions was alleged execution of a forged Will by Tika Ram Tyagi."
Learned counsel has also placed reliance on Managing Director Malkiat Singh, International Tractors Limited vs. Chhote Lal 2009 (2) RCR(Criminal) 643 wherein it has been held as under:-
"The Code does not place a bar on the filing of a second complaint. A second complaint, however, can only be filed and entertained if the complainant is able to establish, to the satisfaction of the Court, the existence of exceptional circumstances, namely, that the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, despite due diligence have been brought on record in the previous proceedings. In order to place the aforementioned facts in their correct perspective, reference in this regard could necessarily have to be made to a few judgments of this Court."
Learned counsel for respondent No.2, on the other hand, has opposed the petition. Learned counsel has submitted that the petitioners would be at liberty to take up all the pleas available to them during trial.
After hearing the learned counsel for the petitioners as well as learned counsel for the respondents, I am of the opinion that the instant petition deserves to be allowed.
Crl. Misc. M No. 7486 of 2011(O&M) 5
A perusal of order dated 28.3.2006 (Annexure P4) reveals that respondent No.2 had filed a complaint under Sections 193, 196, 420, 468, 471,120-B IPC against the petitioners and others. The allegations levelled in the said complaint were that the accused had taken six blank cheques from the complainant but had latter misused the same and filed complaint against the complainant under Section 138 of the Negotiable Instruments Act, 1881 (`the Act' for short). The complainant led his preliminary evidence in support of his case.
The trial Court vide order dated 28.3.2006 dismissed the complaint. Para 7 of the said order reads as under:-
" Keeping in view the arguments addressed by learned counsel for the parties and after going through the record available on the file this court is of the view that it is admitted case of complainant and his colleagues that complaints under section 138 of Negotiable Instruments Act is pending in the court of Sh.Ajay Prasher, Judicial Magistrate Ist Class, Sirsa, which shows that they have issued the cheques and after bounce of all cheques complaints have been filed against them. It can very well be said that no doubt pumplets were distributed by accused no.1 in order to provide loan facility to the villagers and it was just offer for the villagers and complainant and his colleagues have accepted that offer and after that the accounts were opened in the bank by the complainant. Rajinder, Murli Ram, Sahab Ram and Om Parkash and by Crl. Misc. M No. 7486 of 2011(O&M) 6 that way they have accepted the proposal/invitation to offer of the accused persons and had availed the loan facility. There is no evidence on the file to prove that how accused persons have been over cheated or how they have forged any document. But these are the complainant and his colleagues who have willfully opened the accounts in the bank. Application moved to Superintendent of Police does not bear the date but later on it has been written with the pen as 3.9.2004. Version of contents of complaint and documents furnished by complainant prima facie case is not made out against any of the accused and this court comes to the conclusion that the present complaint is just a counter blast to the complaints which are against them and pending in the court of learned Judicial Magistrate Ist Class, Sirsa for 6.7.2006, 5.5.2006, 15.9.2006 and 12.5.2006."
The complaint now sought to be quashed has been placed on record as Annexure P5. A perusal of the said complaint filed under Sections 193, 196, 420, 467, 468, 471, 506 and 120-B IPC reveals that the similar allegations have been levelled by the complainant against the accused as were levelled in the earlier complaint. Further a perusal of the said complaint reveals that the filing of the earlier criminal complaint No.1473-1 of 2004 (Annexure P3) was not disclosed by the complainant.
Complaints have been filed against respondent No.2 under Section 138 of the Act with regard to dishonour of cheques issued by respondent No.2 in favour of M/s Shiva Traders Anaj Mandi Crl. Misc. M No. 7486 of 2011(O&M) 7 Rania. The complaint was filed by petitioner No.1 being the sole proprietor of M/s Shiv Traders Anaj Mandi Rania.
In the present case, respondent No.2 had earlier filed a complaint against the petitioners with regard to the same allegations. The said complaint was dismissed by the trial Court. During the pendency of the said complaint, the present complaint in question was also filed against the petitioners with similar allegations. The fact that earlier a complaint had been filed against the petitioners was not disclosed. Complaint No. 1473-1 of 2004 was dismissed by the trial Court vide order dated 28.3.2006 (Annexure P4). The said fact was not disclosed by respondent No.2 in his preliminary evidence in the complaint in question and due to this reason, the impugned summoning order dated 5.9.2008 (Annexure P8) was passed whereby the petitioners were summoned to face the trial under Sections 420, 467, 468, 471,506 and 120-B IPC. The trial Court,while dismissing the first complaint, has observed that there was no evidence on file to prove how the accused person had cheated the complainant and how the documents had been forged. Complainant and his colleagues had willingly opened the account with Bank. The Court has given the specific finding that the complaint in question was a counter blast to the complaints filed against the complainant. Further in the present case, respondent No.2 was pursuing two complaints at the same time and had not disclosed the factum of dismissal of his first complaint when the impugned summoning order dated 5.9.2008 (Annexure P8) was passed. Hence, continuation of criminal proceedings on the basis of Crl. Misc. M No. 7486 of 2011(O&M) 8 the second complaint are nothing but an abuse of process of law.
Accordingly, this petition is allowed. Criminal complaint bearing No. 120 of 2005 (Annexure P5) titled as "Rajinder Sharma vs. Rajesh Khanna and others" pending in the Court of Judicial Magistrate Ellenabad under Sections 193, 196,420,467,468,471,506 and 120-B IPC along with all consequential proceedings arising thereto including summoning order dated 5.9.2008 (Annexure P8) are quashed;
(SABINA) JUDGE December 19, 2012 arya Crl. Misc. M No. 7486 of 2011(O&M) 9