Misc. Application No. 434 of 2006 · Uttarakhand High Court · 2012

Judgment

1. Both the above titled petitions are interconnected to each other, so these are being disposed of by this single judgment.

2. Having heard learned counsel for either party, the facts as adumbrated from the record are that Fakhruddin Ahmad carries a business of poultry farm under the name and style (cid:147)Azami Poultry Farm(cid:148) at Lamachaur, Haldwani, District Nainital. He used to supply products of his poultry farm to a retail outlet named (cid:147)Chicken Point(cid:148) at Tikonia in Haldwani town. This Chicken Point is being run by Virendra Singh Chauhan and his business partner Surendra Pal Singh (in No. 151 of 2006, supra). The chickens were supplied on cash and credit basis to Virendra Singh Chauhan and Surendra Pal Singh. Thus, a huge amount of credit arrears became due to be 2 paid to Fakhruddin Ahmad. When he displayed his reluctance to keep the supply regular for want of proper payments, Virendra Singh Chauhan allegedly issued a cheque no. 0309820 worth Rs. 8,65,000/- of his Account No. 70187 drawn from Union Bank of India, Haldwani on 15.06.2005. This cheque was handed over by Surendra Pal Singh on behalf of Virendra Singh Chauhan.

3. The said cheque was submitted by Fakhruddin Ahmad to his banker State Bank of India and the same was dishonoured on the ground of (cid:145)insufficient fund(cid:146). The bank issued a slip on dated 26.08.2005 endorsing (cid:145)dishonour of cheque(cid:146). When Fakhruddin Ahmad got the bank slip containing the said information of dishonour, he issued notice to Virendra Singh Chauhan and Surendra Pal Singh (Annexure no. 2 to the petition) on dated 07.09.2005, as envisaged under Section 138 (b) of the Negotiable Instruments Act, 1881 (for brevity hereinafter called as (cid:145)Act(cid:146)). The notice was returned by Virendra Singh Chauhan while it was received by his associate Surendra Pal Singh. They did not make payment of Fakhruddin Ahmad, as was due upon them, so Fakhruddin

Ahmad filed a complaint on dated 10.10.2005 (Annexure no. 11 to the petition) under Section 138 of the Act read with Section 420 IPC. Learned Judicial Magistrate, Haldwani relying upon the statement of Fakhruddin Ahmad under Section 200 Cr.P.C. and his two witnesses Sajid and Mohd. Aslam under Section 202 Cr.P.C. found a prima facie case of cognizance and passed the impugned order on dated 09.01.2006 asking Virendra Singh Chauhan to stand trial for the offence under Section 138 of the Act read with Section 420 IPC and his associate Surendra Pal Singh for the offence under Section 420 IPC. This order is impugned in Criminal Misc. Application No. 151 of 2006 filed 3 by Surendra Pal Singh, wherein original file from court below has been summoned making stop of the case from proceeding ahead.

4. On the other hand, Virendra Singh Chauhan moved an application under Section 156 (3) Cr.P.C. (Annexure No. 4 to the petition) on dated 15.09.2005 with the averments that he issued two blank cheques drawn from his banker Union Bank of India, Haldwani (one of the cheques bearing the same number is subject matter of N.I. Act case (supra) instituted by Fakhruddin Ahmad) to Salim Ali in lieu of debt of Rs. 30,000/- taken from him. These cheques were issued to Salim Ali as security measure but eventually he lost the same. He informed the police about losing of these two cheques. When he informed Virendra Singh Chauhan regarding losing of these cheques, Shri Chauhan in turn sent information to his banker on

09.08.2005 under postal certificate.

5. It was further averred in the said application filed under Section 156 (3) Cr.P.C. that when Virendra Singh Chauhan visited his bank on 02.09.2005, he was taken aback to know that this cheque has been deposited by Fakhruddin Ahmad with mala fide intention in order to cause wrongful loss to him by filling amount of Rs. 8,65,000/-. He further stated that he was never indulged in any trade or business with Fakhruddin Ahmad and no amount of latter is due to him, so he requested the Magistrate to lodge an FIR against Fakhruddin Ahmad. Learned Judicial Magistrate, Haldwani directed the police concerned on 19.09.2005 registration and investigation of the case. The police ended the investigation in submission of the charge sheet (Annexure no. 10 to the petition) against Fakhruddin Ahmad for the offence under Section 420, 467, 468, 471 IPC, whereupon the criminal case no. 732 of 2006 4 was registered against Shri Ahmad and learned Magistrate took cognizance of the matter asking him to stand trial for the aforesaid offence. This charge sheet was challenged by way of this instant criminal misc. application no. 434 of 2006.

6. This petition was adjudicated by learned Single Judge of this Court on 21.06.2006, who dismissed the same. Learned Judge was of the view that the petition lacks merits. Feeling disgruntled, Fakhruddin Ahmad knocked the door of Hon(cid:146)ble Apex Court by way of filing SLP No. 3482 of 2006 which gave rise to criminal appeal no. 1408 of 2008. This appeal was adjudicated by the Hon(cid:146)ble Apex Court on

05.09.2008 with an elaborate judgment. The Court has set aside the order of this Court dated 21.06.2006 and remitted the matter back to this Court for fresh consideration in accordance with law. So this Court has rendered hearing to learned counsel for Fakhruddin Ahmad as well as his counterpart.

7. Having gone through entire facts and circumstances of the case, it is remarkable that when cheque, in question, was dishonoured by the Bank and notice was issued by Fakhruddin Ahmad on 07.09.2005, as envisaged under Section 138 of the Act, then after 8 days, Virendra Singh Chauhan moved an application dated 15.09.2005 under Section 156 (3) Cr.P.C. whereupon order for investigation was made and impugned charge sheet has been submitted. Moving an application by Virendra Singh Chauhan itself speaks in volumes that it was a counterblast of the notice issued by Fakhruddin Ahmad.

8. Both the parties are residing at Haldwani. After issuance of notice dated 07.09.2005, it can be discerned that it would have been reached to Virendra Singh Chauhan in two- three days and instead of receiving the same, he returned it 5 deliberately. Moreover, the same notice was issued to Surendra Pal Singh, a business associate of Shri Chauhan, so it can be perceived that he must have got information of the contents of the said notice from his associate Shri Surendra Pal. As such moving of this application (Annexure No. 4 to the petition) is an outburst in order to repel the effect of notice (Annexure no. 2 to the petition). Otherwise also, the contents of the application under Section 156 (3) Cr.P.C. are itself enough to show that there was inter se trade between Fakhruddin Ahmad proprietor of Azami Poultry Farm and Chicken Point owned by Virendra Singh Chauhan along with his associate Surendra Pal Singh. The entire averments in the application under Section 156 (3) Cr.P.C. appear to be totally a cock and bull story. It is very unfortunate that when the matter was sent for preliminary inquiry by the Magistrate concerned then Sub Inspector Dinesh Rana of police station, Haldwani has forwarded a superfluous, evading and incomplete report and this is enough to show the undue leaning of Sub Inspector Police towards Virendra Singh Chauhan. Even if, the facts, as averred in the complaint, are taken to be true for a moment, at their face value then also no offence under Section 420, 467, 468, 471 IPC can be made out. It is very amazing that there is no mention as to when Shri Virendra Singh Chauhan got information from Salim Ali (as no date is indicated in the application). After getting information, instead of rushing to the bank (located at a stone(cid:146)s throw as argued by learned counsel for the petitioner) personally in order to avert any wrongful loss, he simply sent information to the bank under postal certificate on 09.08.2005, which is wholly unreliable.

9. When the cheque was dishonoured Fakhruddin Ahmad took recourse of the remedy available to him under the 6 law by issuing notice under Section 138 (b) of the Act and it is apparent from the record that Shri Surendra Pal Singh was associate of Shri Virendra Singh Chauhan, so this way Virendra Singh Chauhan and Surendra Pal Singh both were hand in gloves in order to averse the payment of Fakhruddin Ahmad which was due to him.

10. Having a panoptic view of what has been stated above, this Court feels that petition no. 434 of 2006 has very deep merits while petition no. 151 of 2006 is quite superfluous and shallow. Therefore, Criminal Misc. Petition No. 434 of 2006 is allowed. Entire proceedings of criminal case no. 732 of 2006 pending in the court of Judicial Magistrate, Haldwani District Nainital pertaining to case crime no. 7854 of 2005 are hereby quashed while Criminal Misc. Application No. 151 of 2006 is dismissed. It is further directed that court below shall proceed with the complaint of N.I. Act against both the culprits very speedily because by mischievous attempt of Surendra Pal Singh original record of court below was summoned in the Court. Let the original file be remitted back for proceeding the trial ahead. (Servesh Kumar Gupta, J.)

29.03.2012 SKS