Nisha Rani v. Whether the judgment should be reported in the Digest?

Judgment

2. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest? NARESH KUMAR SANGHI, J.

1. Prayer in this petition, filed under Section 482, Cr.P.C., is for quashing of Complaint No. 1245/2/10, instituted on 16.7.2010, titled as ‘Gulshan Rai Bhalla v. Nisha Rani’ (Annexure P-1), under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, ‘the Act’); summoning order, dated 16.7.2010 (Annexure P-2); the order, dated 4.2.2011 (Annexure P-3), serving notice of accusation; the notice of accusation, dated 4.2.2011 (Annexure P-4); and the consequential proceedings arising therefrom.

2. The brief facts of the case are that respondent No. 2- complainant, Gulshan Rai Bhalla, had friendly relations with the petitioner-accused, Nisha Rani. A friendly loan of `5,00,000/- was obtained by the petitioner-accused from respondent No. 2- complainant. In discharge of her financial obligation and legally enforceable debt, the petitioner-accused issued three cheques, bearing Nos. - 640038, dated 9.3.2010, for `1,10,000/-; 640039, dated 1.4.2010, for `1,51,000/-; and 640040, dated 27.4.2010, for CRM-M No. 36299 of 2012 (O&M) 2 `2,00,000/-, as part payment, all drawn on ICICI Bank Limited, Adarsh Nagar Branch, Jalandhar, from her account with an assurance that the said cheques would be honoured and encashed on presentation. Respondent No. 2-complainant presented Cheque No. 640038, dated 9.3.2010, for a sum of `1,10,000/-, for encashment to his banker i.e. IDBI Bank, Cool Road Branch, Jalandhar. However, the said cheque bounced and returned to respondent No. 2-complainant vide Memo. dated 10.3.2010, with the remarks “Funds Insufficient”. Respondent No. 2-complainant approached the petitioner-accused and told her about the bouncing of the above-stated cheque. Thereupon, the petitioner-accused assured respondent No. 2-complainant that he should present the cheque once again, but again the said cheque was returned vide Memo. dated 31.5.2010, with the remarks “Funds Insufficient”.

3. After completing the formalities of issuing notice etc., respondent No. 2-complainant presented the complaint (Annexure P-1) before the learned Area Judicial Magistrate, Jalandhar. Preliminary evidence was led and thereafter vide order dated

16.7.2010 (Annexure P-2), learned Judicial Magistrate Ist Class, Jalandhar, summoned the petitioner-accused for having committed the offence punishable under Section 138 of the Act. On

appearance of the petitioner-accused, learned Trial Court vide its order dated 4.2.2011 (Annexure P-3), ordered that the notice of accusation for the offence punishable under Section 138 of the Act be served upon the petitioner-accused. Consequently, the notice of accusation (Annexure P-4) was served upon the petitioner-accused.

4. By way of the present petition, the petitioner-accused has challenged the complaint, the summoning order, the order for CRM-M No. 36299 of 2012 (O&M) 3 issuance of the notice of accusation and the notice of accusation (Annexures P-1 to P-4, respectively) mainly on the premise that the petitioner-accused had lodged FIR No. 70, dated 25.3.2011, under Sections 120-B and 420, IPC, at Police Station, Bhargo Camp, Jalandhar, alleging that Gulshan Rai Bhalla (respondent No. 2- complainant) told the husband of Nisha Rani that he (Gulshan Rai Bhalla) could arrange a loan for them from the bank. Gulshan Rai Bhalla further told them that 10 blank cheques were required for security purpose and, as such, the petitioner-accused issued 10 blank cheques, photocopy of the sale deed of the house and blank papers after putting the signatures. Gulshan Rai Bhalla obtained a loan of `1,94,000/- in his own name and transferred the same to the bank account of the petitioner-accused. It was further alleged in the FIR that she paid 21 instalments of `8,110/- each to respondent No. 2-complainant and he withdrew `80,000/- from her bank account. It was further alleged that `2,50,478/- were received by respondent No. 2-complainant and thereafter he filed a false case against her claiming that he (Gulshan Rai Bhalla) had to receive `5,00,000/- from her (Nisha Rani). It was further alleged that the remaining cheques were given to other persons by respondent No. 2-compainant for filing complaints against the petitioner-accused.

5. Learned counsel for the petitioner-accused submits that respondent No. 2-complainant has failed to lead any evidence to show that a loan of `5,00,000/- was advanced by him to the petitioner-accused. He further submits that, in fact, the petitioner- accused had received a loan of `1,94,000/- only and the said amount was repaid to respondent No. 2-complainant. He further submits that respondent No. 2-complainant has misused the CRM-M No. 36299 of 2012 (O&M) 4 cheques issued by the petitioner-accused, therefore, the complaint (Annexure P-1) and the consequential proceedings emanating therefrom are liable to be quashed.

7. Heard. The undisputed facts as are emerging from the record are that Cheque No. 640038, dated 9.3.2010, was presented by respondent No. 2-complainant before his banker and the same was returned vide Bank Memo. dated 10.3.2010, with the remarks “Funds Insufficient”. The said cheque was again presented and once again it bounced and returned vide Bank Memo. dated

31.5.2010, with the remarks “Funds Insufficient”. After receiving the intimation regarding bouncing of the cheque, respondent No. 2- complainant served the petitioner-accused with a Registered A.D./UPC legal notice, dated 19.6.2010, demanding the cheque amount from her (petitioner-accused). When the petitioner- accused failed to respond to the said notice, then respondent No. 2- complainant presented the complaint, dated 16.7.2010 (Annexure P-1) before the learned Area Judicial Magistrate. On the same day, after recording the preliminary evidence, the learned Area Judicial Magistrate passed the summoning order (Annexure P-2). The petitioner-accused put in appearance before the learned Court below and she was served upon the notice of accusation on

4.2.2011. The FIR was lodged by the petitioner-accused on

25.3.2011, i.e. about more than one year after the date of issuance of the cheque in question, and about 8 months after filing of the complaint and passing of the summoning order. The version put forth by respondent No. 2-complainant was, prima facie, found to be correct, therefore, the learned Judicial Magistrate Ist Class, CRM-M No. 36299 of 2012 (O&M) 5 Jalandhar, passed the summoning order on 16.7.2010. Thereafter the notice of accusation was also served upon the petitioner- accused on 4.2.2011. The petitioner-accused has now alleged that the cheques handed over to respondent No. 2-complainant were misused. Which version is correct, has to be decided during the course of the trial by the learned Court below. This Court while exercising the powers under Section 482, Cr.P.C., cannot decide the disputed questions of fact.

8. By now it is settled that the proceedings can be quashed only where the complaint does not disclose commission of any offence or the same is frivolous, vexatious or oppressive. Meticulous analysis of the case to find out whether the case would end in conviction is not called for. The complaint has to be read as a whole. If on a consideration of the statement of the complainant on oath, it appears that the ingredients of the offence are disclosed and there is no material to show that the complaint is mala fide/frivolous, the proceedings should not be quashed. Reference can be made to Dhanalakshmi v. R. Prasanna Kumar, AIR 1990 SC

9. In Bimal Kumar Nopani v. State of Uttar Pradesh and another, 2006 Crl.L.J. 2611, a petition under Section 482, Cr.P.C., was presented before the High Court with the plea that the cheque in question was stolen and thereafter the same was misused by the complainant and, as such, the complaint was liable to be quashed. It was held that – (i) the said fact could not be decided while exercising the powers under Section 482, Cr.P.C., since the fact was subject to proof during trial by leading evidence; (ii) no intimation regarding theft of the said cheque was ever given to the bank; and CRM-M No. 36299 of 2012 (O&M) 6 (iii) the signature on the cheque was not disputed.

10. In Vijay Nandeorao Bidwalkar v. Ramavtar Madanlal Aggarwal and another, 2002 (3) Crimes 677, the Bombay High Court held that presumption is in favour of the holder of the cheque unless contrary is proved.

11. At this stage, this Court is not in a position to affirmatively conclude that the version put forth by the petitioner- accused is absolutely correct, therefore, the same has to be decided during the course of the trial, on the basis of the material produced and the evidence led.

12. As a sequel to the above, there is no merit in the present petition and the same is hereby dismissed. November 21, 2012 Pkapoor (NARESH KUMAR SANGHI) JUDGE