Misc. Application No. 319 of 2012 · Uttarakhand High Court · 2012

Mr. Lokendra Dobhal, Advocate, for respondent no.2. Having heard learned counsel for the parties, it appears that the petitioners have been summoned by learned Magistrate to stand trial for various offences of Indian Penal Code vide order dated 3.3.2011 passed in criminal complaint case no.2373 of 2011 (old no.3207 of 2010). The complaint was instituted by Surendra Kumar Basra, herein private respondent no.2, on 13.4.2010 against six accused persons, out of whom, first was Ajit Patel, whereas second was his wife Smt. Rekha Patel, who were the close relatives of Mr. Basra. Both of them have been shown to be residents of State of Orissa, whereas other accused persons have been shown as the residents of Dehradun city. The facts, as averred in the complaint are in detail, but in nutshell, the crux of the entire complaint is that Ms. Rekha Patel was the younger sister-in-law of Mr. Basra. In the year 2004-2005, she came at the residence of Mr. Basra with Mr. 2 Ajit and expressed her intention to marry with the latter. She further disclosed that her parents were not cooperating to this relationship, so Mr. Basra and his wife were instrumental in the solemnization of marriage and as a good gesture to their relatives, the complainant offered the first floor of his own residence to abode Mr. and Mrs. Patel. Now, Patel duo started the business of share trading and allured the nearby shopkeepers to invest money therein since they had the long experience in that business. Several persons of the nearby vicinity placed their trust upon Mr. Ajit Patel and his wife because now they were the close relatives of Mr. Surendra Kumar Basra, who was a local shopkeeper and residing in that vicinity for last many years. This way, lakhs of rupees were invested by numerous persons on the invitation of Mr. Ajit Patel in the share market. After a couple of years, when this share market witnessed a major downfall, all the investors, being apprehended regarding safety of their money, began to demand the same from Mr. Ajit Patel and his wife. In these circumstances, Patel duo eloped in the intervening night of 1/2.2.2009 from the complainant(cid:146)s residence and since then their whereabouts are not known. All the investors now approached Mr. Basra demanding their money back. It is yet to be adjudicated by the court of concerned Magistrate whether the complainant, in order to pacify the investors, issued the bank cheques to meet the demand of their investments or those were issued by Mr. Ajit Patel before leaving Dehradun, after stealing the same from the cheque book of Mr. Basra. On the basis of one of the cheques worth Rs.8.00 lakh, Mr. Shailendra Singh Negi (one of the investors) filed a complaint on 21.12.2009 under the Negotiable Instruments Act, after fulfilling all the formalities viz. presentation of 3 cheque, receiving of bank memo regarding dishonour of the same and issuance of notice u/s 138(b) of the said Act. Learned Magistrate, on the said complaint, took notice on

8.1.2010 against Mr. Surendra Kumar Basra. Now, it has been contended on behalf of private respondent that he never issued any cheque either to Mr. Shailendra Singh Negi nor to any other person of locality. Virtually, those cheques were stolen by Mr. Ajit Patel, inasmuch as, he along with his wife had the easy access in the house of Mr. Basra. Thus sometime, Smt. Rekha Patel might have stolen the chequebook, out of which, Mr. Patel issued these cheques, including the cheque to Mr. Shailendra Singh Negi. A perusal of paragraph no.26 of the complaint discloses that as many as 45 cheques were missing from the chequebook of Mr. Basra. This is somewhat quite unbelievable that Mr. Basra had kept the chequebook after putting signatures on as many as 45 blank cheques. It has been argued on behalf of petitioners that in the complaint, another accused Virendra Rawat has been named, who is none other, whose name was forwarded to learned Magistrate while submitting the list of witnesses on 23.1.2010, whereas this complaint by Mr. Basra was filed on 13.4.2010, i.e. after almost quarter to three months, when the list of witnesses was submitted to the court of Magistrate displaying the name of Virendra Rawat as a witness. It has been argued on behalf of the private respondent that he had informed the concerned police on 31.7.2009 regarding the missing of 45 cheques from his chequebook and the information was also extended to Senior Superintendent of Police on 14.9.2009 to the same effect. It is quite evident that the said information was given by Mr. Basra in order to wriggle out from the criminal prosecution because being a neighbour, 4 he used to hear the whispers, and thus, there was every reason for Mr. Basra to be acquainted the initiation of litigation against him on the basis of several cheques signed by him. Learned counsel for the private respondent has relied upon a precedent of Hon(cid:146)ble Supreme Court in the case of (cid:145)Ajay Mehra and another Vs. Durgesh Babu and others(cid:146) reported in 2003 SCC (Cri.) 1530. The said decision has no applicability in the facts and circumstances of the instant case. The said precedent can be made applicable only when the facts stated in the complaint appear to be true on their face value. However this precedent looses its significance in the present case because the facts stated in the complaint by Mr. Basra do not inspire confidence at all even if they are prima facie considered at their face value. This way, the Court finds that the complaint instituted by Mr. Surendra Kumar Basra against the petitioners, namely, Shailendra Singh Negi and Virendra Rawat, is quite mischievous and has no legs to stand. Thus, the prosecution cannot be allowed to proceed any further against them. Resultantly, the petition is allowed. The entire proceedings of criminal complaint case no.2373 of 2011 (old no.3207 of 2010), Surendra Kumar Basra Vs. Ajeet Patel and others, along with the impugned cognizance order dated

3.3.2011 passed by the court below, are hereby quashed.

01.10.2012 Rd a n g (Servesh Kumar Gupta, J.)