Rajasthan High Court - Jodhpur
Surendra Thakral vs State & Anr on 21 February, 2014
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B.CRIMINAL MISC. PETITION NO.560/2009
Surendra Thakral
Vs.
State of Rajasthan & Anr.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B.CRIMINAL MISC. PETITION NO.560/2009
Surendra Thakral
Vs.
State of Rajasthan & Anr.
Date of Order : 21st February, 2014
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr Vineet Jain, for petitioner
Mr K.K.Rawal - Public Prosecutor
Mr Hemant Jain ] for respondents
Mr Sanjeev Johari ]
BY THE COURT:
This criminal misc. petition under section 482 CrPC has been filed by the petitioner against the order dated 04.02.2009 passed by the Additional Sessions Judge (Fast Track) No.2, Hanumangarh (for short 'the revisional court' hereinafter) in revision petition No.57/2008, whereby the revisional court has dismissed the revision petition filed by the petitioner and affirmed the order dated 01.05.2008 passed by the Judicial Magistrate First Class, Rawatsar, District Hanumangarh (for short 'the trial court' hereinafter). The petitioner has also S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
2 challenged the order dated 01.05.2008 passed by the trial court, whereby the charges for the offences punishable under sections 467, 468, 471 IPC have been framed against the petitioner.
Brief facts of the case are that on 09.10.2003, the respondent No.2 filed a complaint before the trial court with the allegation that on 01.01.2001, he acquired the dealership of the Castrol Point from Castrol India Ltd. in the town of Rawatsar. At that time, the authorised distributor for the Castrol India Ltd. was Janta Agency, Sri Gangangar owned by the petitioner and the respondent No.2 was required to obtain stock from him. It is alleged in the complaint that as per the demand of the petitioner, the respondent No.2 handed over two blank cheques to him as security. It is containd in the compliant the respondent No.2 continuously received stock from the petitioner's agency up to October, 2001, however, from November, 2001, the Castrol India Ltd. has changed his distributorship and appointed M.K.Enterprises, Sri Gangangar as its S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
3 distributor and since then the petitioner started business with M.K.Enterprises. It is alleged that as the petitioner was not the distributor of the Castrol India Ltd., the respondent No.2 demanded return of the cheques, which were given to the petitioner as security and also wrote a letter to the Bank on 18.12.2001 to stop the payment of those two cheques bearing No.062381 and 062382. However, on 28.08.2003, he received a call from the Manager of the Bank, who informed him that the cheque No.062381 dated 30.03.2003 amounting to Rs.1,43,286/- has come to the Bank for clearance. After receiving this information, he contacted to the petitioner along with some other persons and requested him to return the cheques but the petitioner had refused and threatened him that now he is going to present another cheque to the Bank. It is alleged in the complaint that the blank cheques were given to the petitioner in the year 2001 but the petitioner has filled in one cheque No.062381 and presented it to the Bank and as such committed offences punishable under sections S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
4 420, 467, 468, 406, 120-B and 471 IPC.
On receiving this complaint, the trial court forwarded the same to the police for investigation and the police has lodged an FIR No.293/2011 on 11.11.2003 at Police Station, Rawatsar and started investigation. After concluding the investigation, the police filed a negative final report, while stating that the matter is of civil nature and, therefore, no offence as alleged in the complaint is made out against the petitioner.
Thereafter, the petitioner had filed a protest petition, upon which, the trial court, after recording the statement of the complainant under section 200 CrPC, has taken the cognizance against the petitioner for the offences punishable under sections 467, 468 and 471 IPC. Against the order of taking cognizance, the petitioner had preferred a revision petition before the revisional court, which too came to be dismissed by the revisional court.
The trial court framed charges against the petitioner for the offences punishable under sections 467, 468, 471 IPC S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
5 vide order dated 01.05.2008. Being aggrieved with the same the petitioner has preferred a revision petition before the trial court, which has been dismissed vide order dated 04.02.2009.
The orders dated 01.05.2008 and 04.02.2009 passed by the courts below, are under challenge in this criminal misc. petition.
The learned counsel for the petitioner has argued that there is no doubt about the fact that two cheques were given by the complainant to the petitioner against the security. However, when the complainant had failed to clear the outstanding dues of the petitioner in relation to the stock supplied to him, the petitioner was compelled to take action of invocation of security against the complainant and in the process of that action, the cheque in question was put to the bank of the complainant for encashment for recovering the outstanding dues. It has also been submitted that the petitioner was very much entitled to fill in the cheque and present the same for encashment. It has also S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
6 been submitted that the respondent No.2 had lodged the complaint against the petitioner due to malafides because when the cheque No. 062381 was not honoured, the petitioner sent a notice to the respondent No.2 on 24.09.2003 but he deliberately refused to accept the said notice and thereafter the petitioner lodged a complaint against the respondent No.2 under the provisions of section 138 of the Negotiable Instruments Act (for short 'the N.I.Act' hereinafter) and only with an intention to pre-empt the proceedings under section 138 of the N.I.Act, the respondent No.2 has filed this false complaint.
The learned counsel for the petitioner has further argued that even if it is admitted that the petitioner has filled in the amount and date in the blank cheque, then also, it would not amount to forgery or making a false document as defined under sections 463 and 464 IPC because it is not in dispute that cheque in question, issued in favour of petitioner firm was handed over by the respondent No.2 to the petitioner bears his signature and mere insertion of date and S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
7 amount in cheque does not amount to material alteration and the same is permissible as per the provisions of section 118 of the N.I.Act. It has also been contended by the learned counsel for the petitioner that from the material available on record, it cannot be said that the petitioner has committed any forgery for the purpose of cheating and no case for commission of offence under punishable sections 467, 468, 471 IPC is prima facie made out.
The learned counsel for the petitioner has placed reliance on the
decisions of Hon'ble Supreme Court in Sunil Kumar vs. M/s. Escorts Yamaha Motors Ltd. & Ors., 1999 Cr.L.R. [SC] 790; and Parminder Kaur vs. State of Uttar Pradesh & Anr., (2010) 1 SCC (Cri) 782. He has also placed reliance on decisions of this Court in S.K. Gulati & Ors. vs. State of Rajasthan & Anr., 2004(3) R.Cr.D. 250 (Raj.); and LG Electronics India Pvt. Ltd. (M/s.) & Anr. vs. State of Rajasthan & Ors., 2012(1) RLW 1663 (Raj.). The learned counsel for the petitioner has also argued that the learned S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
8 trial court has grossly erred in framing the charge against the petitioner for the offences punishable under sections 467, 468 and 471 IPC and the revisional court has also erred in rejecting the revision petition filed by the petitioner. The learned counsel for the petitioner has, therefore, prayed that this petition may be allowed and the impugned orders passed by the trial court as well as the revisional court may kindly be quashed and the petitioner may be discharged from the aforesaid charges.
Per contra, the learned counsel for the respondent No.2 has argued that there is no illegality in the orders passed by the courts below as prima facie, the material for framing charge for the offences under sections 467, 468, 471 IPC is available on record. The learned counsel for the respondent No.2 has also argued that the courts below have rightly held that the petitioner has filled in the amount and the date in the blank cheque and that action of the petitioner very well comes within the purview of making a false document with S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
9 dishonest and fraudulent intention.
Heard the learned counsel for the parties and perused the material placed on record.
It is not in dispute that the respondent No.2 had handed over two cheques to the petitioner in the year 2001. It is also not in dispute that those cheques were issued in the name of petitioner firm and bears signatures of the respondent No.2. It is also not in dispute that the said cheques were given by the respondent No.2 to the petitioner as security.
Now the question comes that the action of the petitioner of filling in the amount and date in one cheque and thereafter to present it to the bank for realisation would amount to commission of the offences of forgery and making a false document as defined in sections 463 and 464 IPC.
This Court in LG Electronics India Pvt. Ltd. (M/s.) & Anr. vs. State of Rajasthan & Ors. (supra), had the occasion to consider a similar controversy wherein also, the recipient of the blank cheque had S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
10 submitted the said cheque for encashment in the bank after filling in the amount and the date, and in that case, this Court, after taking into consideration earlier decisions of the Hon'ble Supreme Court as well as of this Court has held as under:
"11. This Court is of the view that by virtue of Section 118 of the Negotiable Instrument Act, there exists a presumption in favour of the holder of the cheque that the cheque bears the endorsements with which the same has been presented to the bank. A holder of the cheque in due course even if the cheque is blank in dates or other endorsements, is entitled to fill in the same and present the same to his bank for encashment. This court in case of Sunil Kumar vs. State of Rajasthan reported in 2002(1) RCD 377 had the occasion to consider the issue of material alteration and the court held that the holder of the cheque is very much entitled to fill in the blanks left in the cheque and it could not be said that mere act of filling in the details or endorsements that the holder had made material alternations in the cheque.
12. Thus, none of the acts as alleged in the complaint can be S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.11
said to be either the acts of cheating or forgery. Undisputedly, the cheque bears the signature of the partner of the firm. The cheque has undisputedly been given to the company as security and after the disputes arose regarding payments, the company sought to recover its dues from the complainant firm by utilizing this cheque. It is only after the initiation of prosecution of the complainant firm by the company under section 138 of the Negotiable Instruments Act that the present F.I.R has been filed.
The Hon'ble Apex Court in the
cases of (1) Sunil Kumar vs.
Escorts Yamaha Motors Ltd. And
others reported in (1999) 8 SCC
468 and (2) Mahindra & Mahindra
Finance Services Ltd. vs. Rajeev Dube reported in AIR 2008 (Suppl.) SC 821 has held that initiation of prosecution for cheating and forgery (in relation to be a cheque) after the bouncing of the cheque and after the initiation of prosecution under Negotiable Instruments Act, is nothing but an attempt to pre-empt the complaint under Section 138 of Negotiable Instruments Act. Such an F.I.R has been held to be an F.I.R instituted as a counter blast and has been held liable to be S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.12
quashed."
S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
13 As noticed earlier, the fact of handing over the cheques by the respondent No.2 to the petitioner as security is not in dispute. It is also not in dispute that signatures of the respondent No.2 are there on the cheques, however, out of the two cheques, the petitioner had presented one cheque for realisation by filling in date and amount in it. In view of the law laid down in above referred case, the action of the petitioner of filling in the amount and date in the Bank cannot be said to be an act commission of offences under sections 467, 468 and 471 IPC. The trial court as well as the revisional court have framed the charges against the petitioner for the offences under sections 467, 468, 471 IPC only on the ground that the action of the petitioner of filling in the amount and the date in the cheque comes within the definition of making a false document. In the opinion of this Court, the courts below have grossly erred in treating the action of the petitioner of filling in amount and date as an offence for making a false document.
S.B.CRIMINAL MISC. PETITION NO.560/2009 Surendra Thakral Vs. State of Rajasthan & Anr.
14 Consequently, this criminal misc. petition filed by the petitioner under section 482 CrPC is allowed. The impugned orders dated 01.05.2008 and 04.02.2009 passed by the courts below are hereby set aside. The petitioner is discharged from the charges levelled against him.
Stay petition stands disposed of.
[VIJAY BISHNOI],J.
m.asif/-