Rajasthan High Court - Jaipur
Hanuman Dadhich vs Satish Kumar Gaur And Anr on 24 October, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 3359/2017
Hanuman Dadhich S/o Vishnu Dadhich B/c Brahmin, R/o Sarwar,
Ps Sarwar Tehsil Sarwar, District Ajmer, Raj.
----Petitioner
Versus
1. Satish Kumar Gaur S/o Shri Yashwant Kumar Gaur B/c
Brahmin, R/o Sarwar, Ps Sarwar Tehsil Sarwar, District
Ajmer, Raj.
2. State Of Rajasthan Through P.p.
----Respondents
For Petitioner(s) : Ms. Shikha Parnami
For Respondent(s) : Mr. Prakash Thakuriya, PP for State
Mr. Sandeep Maheshwari, for
respondent No.1
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Order 24/10/2018 Present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No.71/2017, registered at Police Station Sarwar, District Ajmer for offences under Sections 420, 467, 468, 471, 120B IPC.
Briefly stated, respondent No.1 Satish Kumar Gaur had issued a cheque amounting to Rs.8,50,000/- in favour of the petitioner. Said cheque, on presentation, bounced. Petitioner filed a complaint under Section 138, N.I. Act. Before filing the complaint, petitioner issued a statutory notice and thereafter had filed the complaint. Petitioner has made a grievance that qua the said cheque, after initiation of complaint under Section 138, N.I. Act by the petitioner, the complainant-respondent, accused in the (2 of 4) [CRLMP-3359/2017] case under Section 138, N.I. Act, lodged FIR No.71/2017 at Police Station Sarwar, District Ajmer alleging therein that the petitioner fabricated the cheque by writing an amount thereupon. Respondent No.1 Satish Kumar Gaur denied issuance of cheque and made a grievance that the cheque has been misused.
Ms. Shikha Parnami appearing for the petitioner has canvassed following arguments before this court:-
(a). Since the petitioner has filed complaint under Section 138, N.I. Act, prior in time, therefore, necessarily FIR lodged by the petitioner is to be quashed.
(b). Learned counsel further urged that this court has to assume and hold that the FIR lodged by respondent No.1 is a counterblast to the complaint filed by the petitioner under Section 138, N.I. Act.
To fortify the above submissions, learned counsel for the petitioner has relied upon Rajkapoor v. State of Rajasthan & Ors., 2016(3) WLC (Raj.) 670, to contend that this court has held that if complaint is filed by the person who is accused in a FIR case regarding misuse of cheque, said FIR be quashed.
This court is unable to subscribe to the judgment relied by the learned counsel for the petitioner as the said judgment is on the facts of that case. There can be no universal dictum that once complaint under Section 138, N.I. Act is filed, the accused in complaint case is foreclosed to pursue his defence by taking recourse to lawful remedy available to him.
Learned counsel for the petitioner has further relied upon D.P. Gulati, Manager Accounts, Jetking Infortrain Limited v. State of Uttar Pradesh & Anr., (2015) 11 SCC 730.
(3 of 4) [CRLMP-3359/2017] A perusal of said judgment reveal that in Para-9 it was specifically noted that having regard to facts of the case in hand and after going through the criminal complaint filed in that case, the FIR be quashed. The above said judgment also in no way make a statement of law that necessarily the court has to quash the FIR.
As observed earlier, the accused in a complaint case under Section 138, N.I. Act and complainant to present FIR, has a lawful remedy to pursue his defence in a complaint under Section 138, N.I. Act and he cannot be denied his right to urge before a court of law by taking recourse to the provisions of Code of Criminal Procedure that he is a victim of fabrication of document i.e. a cheque. It is true that in peculiar facts and circumstances of the case, this court while exercising powers under Section 482 Cr.P.C. can quash the FIR. What can be the grounds for quashing of the FIR cannot be put in straight jackets, however to illustrate it can be said that if accused in a complaint under Section 138, N.I. Act, in reply to the notice admit issuance of cheque, he cannot be permitted later to say that the cheque has been fabricated or forged as reply to the notice shall be a document of the sterling unimpeachable quality. Therefore, the argument raised by the learned counsel that necessarily court is bound to quash the FIR in each and every case cannot be accepted and same being not sustainable is rejected.
However, this court cannot become oblivious of the fact that the question i.e. whether cheque is a fabricated document or not is an issue which is to be decided in both cases, i.e. in the complaint under Section 138, N.I. Act and in criminal case arising out of the FIR. Since the investigating agency has come to the (4 of 4) [CRLMP-3359/2017] conclusion that offence is, prima facie, made out in the FIR case, to ward off conflicting findings in two proceedings, it is ordered that the complaint filed by the petitioner under Section 138, N.I. Act, and criminal case arising out of FIR No.71/2017, registered at Police Station Sarwar, District Ajmer for offences under Sections 420, 467, 468, 471, 120B IPC at the instance of respondent No.1, shall be tried by one court simultaneously, but separately. Sessions Judge, Ajmer is directed to entrust both the cases to one court.
In view of above, the present petition stands disposed of.
(KANWALJIT SINGH AHLUWALIA),J Govind/ Powered by TCPDF (www.tcpdf.org)