Himachal Pradesh High Court
Manoj Kapoor Aged About 44 vs State Of H.P. Through Its on 31 October, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 31st DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) U/S 482 Cr.P.C No.180 OF 2022
Between:
MANOJ KAPOOR AGED ABOUT 44
YEARS SON OF SHRI LAL CHAND,
RESIDENT OF HOUSE NO.80/5,
PALACE COLONY, MANDI TOWN,
DISTRICT MANDI, H.P.
....PETITIONER
(BY MR. R.L.CHAUDHARY, ADVOCATE)
AND
1. STATE OF H.P. THROUGH ITS
PRINCIPAL SECRETARY (HOME)
TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA-
171002.
2. STATION HOUSE OFFICER,
POLICE STATION SADAR MANDI,
DISTRICT MANDI, H.P.
3. SHRI GAGAN PARDEEP SON OF
SHRI INDER DEV SHARMA,
RESIDENT OF VILLAGE & P.O.
REUR, TEHSIL SADAR, DISTRICT
MANDI, H.P.
....RESPONDENT
(MR. NARENDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL,
FOR R-1 & 2)
(Mr. H.S.RANGRA, ADVOCATE FOR R-
3)
Whether approved for reporting?
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2
This petition coming on for orders this day, the Court passed the following:
O R D E R
.
By way of instant petition filed under Section 482 Cr.P.C, prayer has been made on behalf of the petitioner for quashing of complaint No.379- III/18/11, Registered No.1143/2013 under Section 138 of the Negotiable Instruments Act, dated 20.10.2011 (Annexure P-4) as well as proceedings thereto pending in the Court of learned Judicial Magistrate 1st Class, Court No.2, Mandi, District Mandi, H.P.
2. Reply on behalf of respondent Nos. 1 to 3 is on record.
3. Having heard learned counsel representing the parties and perused material available on record, this Court finds that precisely the ground as raised in the instant petition and has been further canvassed by Mr. R.L. Chaudhary, learned counsel representing the petitioner, for quashing of proceedings under Section 138 of the Negotiable Instruments Act (for short 'Act') is that since FIR No.219 of 2011, dated 24.08.2011 already stands registered against the respondent-complainant, Sh. Gagan Pradeep and it has come in the investigation that cheque was not misused by the petitioner-
complainant, rather by someone else and contents of the cheque were filled up by respondent No.3, complaint filed under Section 138 of the Act pending adjudication before the court below is not maintainable. While making this Court to peruse the reply filed on behalf of respondent Nos. 1 and 2 to the instant petition, learned counsel for the petitioner vehemently argued that since in FIR filed on behalf of the petitioner, it has clearly emerged that cheque, which is subject matter of the proceedings under Section 138 of the Act was ::: Downloaded on - 02/11/2022 20:33:11 :::CIS 3 misused by the respondent-complainant, Court below ought not have entertained the complaint under Section 138 of the Act.
.
4. Learned counsel representing respondent No.3/complainant while fairly admitting factum with regard to report rendered by handwriting expert contends that in the report of handwriting expert there is no specific opinion, if any, against the respondent/complainant, rather handwriting expert has opined that person other than the petitioner/complainant has signed the cheque, but that does not mean that the same was not issued towards discharge of lawful liability by the petitioner-complainant towards respondent-complainant.
5. No doubt, in the case at hand, FIR with regard to theft of cheque, which is subject matter of the proceedings stands lodged against the respondent-complainant, but record clearly reveals that same came to be lodged after issuance of demand notice by the respondent-complainant.
Though, it has come in the investigation that cheque was stolen but it is yet to be established on record by the prosecution by leading cogent and convincing evidence that same was stolen by the respondent-complainant and thereafter he misused the same. Till the time it is not proved on record by the prosecution that the cheque was stolen and misused by the respondent-complainant, it would be too premature at this stage to conclude that complaint under Section 138 of the Act filed on behalf the respondent/complainant is frivolous. This Court finds force in the submission of learned counsel for respondent No.3/complainant that no prejudice, if any, would be caused to the petitioner-
complainant in case proceedings under Section 138 of the Act initiated against him at the behest of respondent No.3 are allowed to continue because even in ::: Downloaded on - 02/11/2022 20:33:11 :::CIS 4 those proceedings he will get an opportunity to prove factum, if any, with regard to theft of the cheque and thereafter misuse of the same by the respondent .
No.3/complainant.
6. In view of the detailed discussion made hereinabove, this Court finds no merit in the present petition and accordingly same is dismissed.
However, learned Judicial Magistrate 1st Class, Court No.2, Mandi, District Mandi, H.P., is directed to decide the complaint under Section 138 of the Act expeditiously, preferably within a period of six months. Needless to say, Court below while doing the needful shall also taken into consideration evidence/material collected, if any, on record including the report under Section 173 Cr.P.C., filed by the police in competent court of law. Pending applications, if any, also stand disposed of. Interim order is vacated.
31st October, 2022 (Sandeep Sharma),
(shankar) Judge
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