No. M- 35409 of 2010 (O&M) Date of Decision : December 2 & Anr. v. M/s. Chintpurni sanitatiions Private limited” under Section 138 of the Negotiable Instruments & Ors.

purpose the complainant has appointed Shri Tarun Aggarwal resident of Lawian Mohalla Batala as his General Attorney dated 26.11.2005. Hence the present complaint is being instituted in the Hon'ble Court through his General Attorney Shri Tarun Aggarwal, who is the real son of the complainant. The said Shri Tarun Aggarwal who is the General Attorney of the complainant is fully conversant with the facts of the case.

2. That accused no.1 is the company and accused nos.2 to 5 are the Directors of accused no.1. Accused nos.2 to 5 being Directors of accused no.1 are the Principals and Incharge of the entire business doing and conducting by accused no.1, thus all the acts and deeds are being done by accused no.1 through accused nos.2 to 5 being Directors of accused no.. Accused no.1 through accused nos.2 to 5 being directors of accused no.1 took a loan of Rs.5,25,000/- on

2.10.2004 from the complainant on interest @ 2.50% per month for the smooth running of their business and in this regard accused nos.2 to 5 being the Directors of accused no.1 for themselves as well as on behalf of accused nos.1,3,4 issued 11 post dated cheque nos.297411 dated 10.08.2005 for Rs.50,000/-, cheque no.297412 dated

20.08.2005 for Rs.50,000/-, cheque no.297413 dated 30.08.2005 for Rs.50,000/- cheque no.297416 dated 9.9.2005 for Rs.75,000/-, cheque no.297417 dated 19.9.2005 for Rs.50,000/-, cheque no.297418 dated 29.9.2005 for Rs.50,000/-, cheque no.297419 dated Crl. Misc. No. M- 35409 of 2010 (O&M) 3

9.10.2005 for Rs.50,000/-, cheque no.297420 dated 19.10.2005 for Rs.50,000/-, cheque no.297421 dated 29.10.2005 for Rs.50,000/-, cheque no.297422 dated 8.11.2005 for Rs.50,000/- and cheque no.299249 dated 15.11.2005 for Rs.1,75,000/- in favour of the complainant and the all the cheques are drawn on Oriental Bank of Commerce Branch GT Road, Jalandhar City in discharge of their trade liability. It is pertinent to mention here that the first ten cheques were issued by the accused towards liability of Rs.5,25,000/- and eleventh cheque no.299249 dated 15.11.2005 for Rs.1,75,000/- was issued by the accused on account of interest accrued on the principal amount of Rs.5,25,000/-.

3. That out of the above mentioned cheques the complainant presented three cheques bearing cheque nos.297416 dated 9.9.2005 for Rs.75,000/-, cheque no.297417 dated 19.9.2005 for Rs.50,000/-, cheque No.297418 dated 29.9.2005 for Rs.50,000/- to his bankers i.e. Punjab National Bank Branch Prem Nagar Railway Road Batala for its encashment but during the course of collection of these cheques the bankers of the accused returned the above said three cheques as unpaid vide three different memos dated 5.11.2005 with remarks of the memos “NOT ARRANGED FOR” meaning thereby that the accused had no funds in their account at the time of issuance of the said cheques as well as at the time of presentment of these cheques by the complainant. In fact the accused were aware of it that the said cheques will be dishonoured as and when the same will be presented for its encashment.

4. That the bankers of the complainant i.e. Punjab National Bank Crl. Misc. No. M- 35409 of 2010 (O&M) 4 Branch Prem Nagar Railway Road Batala returned the three above mentioned original cheques along with memos dated 5.11.2005 duly issued by the bankers of the accused i.e. Oriental Bank of Commerce Branch GT Road Jalandhar City to the complainant vide intimation letter dated 10.11.2005.

5. That thereafter the complainant issued a legal notice dated

6.12.2005 on the accused nos.1 to 5 through his counsel whereby the cheques amounts were demanded by the complainant from the accused nos.1 to 5 but the accused no.1 to 5 did not make the payment of the cheque amounts within the stipulated period of the legal notice. Hence the complainant has no option, but to file the present complaint in this Hon'ble Court. Hence the accused no.1 being the firm and accused nos.2 to 5 being the directors of accused no.1 have committed an offence under section 138 of the Negotiable Instruments Act, 1881 (Amended up to date) read with section 420 IPC and accused nos.2 to 5 being directors of accused no.1 are jointly and severally liable to be criminally prosecuted under the relevant provisions of NI Act read with provisions of the Indian Penal Code. It is therefore respectfully prayed that keeping in view the facts and circumstances of the case as stated above the accused nos.1 to 5 may kindly be summoned and they be dealt in accordance with law and deterrent punishment be awarded to the accused nos.1 to 5 jointly and severally under the relevant provisions of Negotiable Instruments Act in order to meet the ends of justice.” Learned counsel for the petitioners has submitted that although the petitioners are Directors of the Company, but Devender Kumar is Crl. Misc. No. M- 35409 of 2010 (O&M) 5 looking after the affairs of the Company. Petitioners have been falsely involved in this case. After hearing the learned counsel for the petitioners, I am of the opinion that the instant petition deserves dismissal. 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 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 Crl. Misc. No. M- 35409 of 2010 (O&M) 6 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. (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 Crl. Misc. No. M- 35409 of 2010 (O&M) 7 according to its whim or caprice.” Admittedly, the petitioners are the Directors of the Company. At this stage there is nothing on record to suggest that the petitioners are not actively managing the affairs of the Company. Hence, no ground for quashing of the complaint at the very threshold is made out. Dismissed. December 2, 2010 Anand (SABINA) JUDGE