Amar Upadhyay v. Naresh Kumar Jaglan

Mr.Ajay Pal, Advocate for the petitioner. Mr.Arun Singal, Advocate for the respondent. ** Sabina, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure,1973 seeking quashing of the criminal complaint dated 15.6.2007 filed under Section 138 of the Negotiable Instruments Act, 1881(for short `the Act') (Annexure P4) and summoning order dated 30.7.2007 (Annexure P5) along with all consequential proceedings arising thereto . Respondent has filed the complaint under Section 138 of the Act against the petitioner and others with regard to the dishonour of two cheques dated 25.11.2006. Details of the same are given as under:- CRM M No. 27234 of 2009 2 S.No. Cheque Number Amount Date (1). 015505 `3,07,000/- 25.11.2006 (2) 015509 `1,24,423/- 25.11.2006 In support of his case, respondent led his preliminary evidence. Vide order dated 30.7.2007 (Annexure P5), accused were summoned to face the trial for commission of offence under Section 138 of the Act. Learned senior counsel for the petitioner has submitted that the petitioner had resigned from the Company on 23.12.2003,whereas, the cheque in question was issued on 25.11.2006.Hence, the petitioner could not be held liable qua dishonour of the cheque which had been issued by the Company after his resignation. Learned counsel for the respondent, on the other hand, has submitted that it was a matter of evidence as to whether the petitioner had resigned from the Company with effect from

23.12.2003 or not. After hearing the learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. It has been held in 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 CRM M No. 27234 of 2009 3 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, 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 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 CRM M No. 27234 of 2009 4 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. (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.” CRM M No.

27234 of 2009 5 Annexure P3 is the copy of form No.32 under the Companies Act, 1956 issued by the Director of the Company in question. A perusal of the same reveals that the petitioner had resigned from the Company on 23.12.2003. Learned senior counsel for the petitioner, during the course of arguments, has placed on record a photocopy of the communication by the Ministry of Corporate Affairs (original seen and returned). A perusal of the same reveals that the petitioner, who was one of the Directors of the Company, had joined the Company with effect from 23.5.2003 and resigned from the Company on