Punjab-Haryana High Court
Amit Nagpal And Another vs Hitesh Chugh And Another on 6 November, 2012
Author: Sabina
Bench: Sabina
Criminal Misc. No.M- 9221 of 2009 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Misc. No.M- 9221 of 2009 (O&M)
Date of decision: 6.11.2012
Amit Nagpal and another
......Petitioners
Versus
Hitesh Chugh and another
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Puneet Bali, Sr. Advocate with
Ms.Priyanka Ahuja, Advocate,
for the petitioners.
None for the respondents.
****
SABINA, J.
Petitioners have preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of criminal complaint No.64-1 of 2007 dated 23.2.2007 (Annexure P-8) under Section 406/ 420 of the Indian Penal Code, 1860 (IPC for short); summoning order dated 29.1.2009 (Anneuxre P-9) and all the subsequent proceedings arising therefrom.
Learned senior counsel for the petitioner has submitted that respondent No.1 had applied for insurance policy. Respondent No.1 had submitted a cheque in the sum of ` 4,133/-. The policy, however, was declined to respondent No.1 but due to inadvertance, the cheque deposited by respondent No.1 was encashed. However, on coming to know about the said mistake, the cheque amount along with interest was disbursed to respondent No.1 through registered Criminal Misc. No.M- 9221 of 2009 (O&M) 2 post. Since the said cheque was not encashed by respondent No.1, another cheque was sent to respondent No.1 through registered post. The petitioner could not be attributed any criminal offence as the mistake had occurred with regard to encashment of the cheque of respondent No.1 due to inadvertence After hearing learned senior counsel for the petitioners, I am of the opinion that the present petition deserves to be allowed.
In the case of State of Haryana vs. 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 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 first 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 first information report Criminal Misc. No.M- 9221 of 2009 (O&M) 3 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 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.Criminal Misc. No.M- 9221 of 2009 (O&M) 4
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." Contents of the complaint (Annexure P-8) read as under:-
"1. That the complainant is the permanent resident of the above address and is a peace loving citizen.
2. That the accused No.1 has set up a Company in the name of Reliance General Insurance Company Limited. Through this Company, accused No.1 does general insurance of the public. Accused No.2 and 4 are employees of the Company, who do the work of the company on behalf of accused No.1.
3. That the accused issues mediclaim policies of the people through the medium of their Company. As per the advertisement and the conditions advertised by the Criminal Misc. No.M- 9221 of 2009 (O&M) 5 accused, the complainant applied for a medical claim policy family through the medium of this Company and a cheque No.147049, dated 04.07.2006 for ` 4133/- drawn at HDFC Bank, Hissar, was issued in the name of the Company of the accused.
4. That the accused asked the complainant to get a medical test of the complainant's father done and on that complainant sent a medical report dated 28.07.2006 to the office of the accused.
5. That after getting the medical report, the accused rejected application for the medi-claim policy of the complainant and his family but the accused did not send back the cheque issued by the complainant. On this, the complainant contacted the accused on telephone and the accused assured that his cheque would be sent back immediately and we will not use the same.
6. That the complainant trusted the statement of the accused and got busy in his work.
7. That on 12.12.2006 when the complainant got issued the copy of his bank account, he came to know that the cheque which the complainant has issued in the name of the Company of the accused, has been got encashed on 21.11.2006 and ` 4133/- have been debited from the account of the complainant.
8. That the complainant contacted accused over telephone regarding the withdrawal of money from his Criminal Misc. No.M- 9221 of 2009 (O&M) 6 account but the accused gave no satisfactory reply to the complainant. The complainant checked the e-mail account of the company of the accused, then he came to know that against the cheque of the complainant, the accused has issued four other medi-claim policies, number of the policies are Serial No.1000255617- 1000255620.
9. That it is clear that accused No.1 to 4 have in connivance with accused No.5 to 6 issued the said policies.
10. That after this, the complainant contacted many times the accused but the accused has not returned the money of the complainant till today. In this way, the accused have committed fraud and breach of trust with the complainant and committed offence under Sections 420/ 406, IPC"
In the present case, respondent No.1 had applied for insurance policy. Admittedly, respondent No.1 had submitted cheque to the tune of ` 4,133/- dated 4.7.2006. Respondent No.1 had also sent the medical report dated 28.7.2006 with regard to his father. However, the insurance policy was declined to respondent No.1. The cheque was encashed in connection with policies bearing serial No.1000255617 - 10000255620. When the complainant raised grievance in this regard, the matter was duly inquired by the company. The entire correspondence that took place in this regard has been placed on record as Annexure P-2 (colly). A perusal of the same reveals that the cheque with regard to the amount in question Criminal Misc. No.M- 9221 of 2009 (O&M) 7 along with interest was sent to respondent No.1 through registered post. However, the complainant failed to encash the said cheque dated 17.2.2007. The company sent another cheque to respondent No.1 bearing No.737646. In this regard, reference has been made by the learned senior counsel towards Annexure P-4 and Annexure P-7. This shows that the company had no criminal intent to misutilise the cheque of respondent No.1 amounting to ` 4,133/-. It appears that due to inadvertence the cheque submitted by respondent No.1 was encashed qua another family policy. The moment the company came to know about the mistake, respondent No.2 was issued the cheque with regard to amount in question along with interest. Merely because respondent No.1 has failed to encash said cheque would not be a reason to criminally prosecute the petitioners. Respondent No.1 would be at liberty to claim the amount in question from the company as per law but continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law.
Accordingly, this petition is allowed. Criminal complaint No.64-1 of 2007 dated 23.2.2007 (Annexure P-8) under Section 406/ 420 IPC ; summoning order dated 29.1.2009 (Anneuxre P-9) and all the subsequent proceedings arising therefrom are quashed.
(SABINA) JUDGE November 06, 2012 anita