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PUNJAB AND HARYANA HIGH COURT
M.M.S. Bedi, J.
Kamlesh Barwal and another —Petitioners
versus
Jaswant Singh Panwar —Respondent
C.R.M. M-5242-2012 (O&M).
Decided on 1.10.2012
For the Petitioner:Mr. M.L. Sarin, Sr., Advocate, with Mr. Sahil Sharma, Dr. Lakshmi Narsimha and Mr. S.D.S. Sukhija, Advocates
For the Respondent:Mr. A.R. Takkar, Advocate.
IMPORTANT POINT
Availability of alternate remedy is not an absolute bar in entertaining petition under Section 482 Cr.P.C.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138 and 141—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Summoning order—Offence by company—Only that person can be deemed to have committed offence who had drawn cheque on account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge of any liability—Petitioners are neither Directors of Company which had issued cheque nor they have appended any signatures on cheque which was dishonoured on presentation—Even if allegations in complaint are taken on their face value and accepted in their entirety, no prima facie offence is made out against petitioners—Petitioners being neither signatories nor Directors of Company could not have been impleaded as accused especially when there is no specific allegation against them in complaint—Criminal Complaint, summoning order and all consequential proceedings accruing therefrom qua petitioners quashed. (Paras 8, 9, 13 and 14)
(ii) Criminal Procedure Code, 1973—Section 482—Quashing—Parameters—When allegations made in complaint even if taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against accused or where allegations made in complaint and evidence produced in support of same do not disclose commission of any offence and make out a case against accused, it is open to High Court in exercise of extra ordinary inherent powers to quash complaint or FIR— Availability of alternate remedy is not an absolute bar in entertaining petition under Section 482 Cr.P.C. (Paras 9 and 11)
M.M.S. Bedi, J. —Petitioners have filed the instant petition under Section 482 Cr.P.C., for quashing of Criminal Complaint No.223 titled ‘Jaswant Singh Panwar v. Sh.Dattaray and others’, dated 29.7.2011, Annexure P-1, pending in the Court of the Judicial Magistrate First Class, SAS Nagar, Mohali, under Section 138 of the Negotiable Instruments Act, the summoning order dated 8.8.2011, Annexure P-2, and all the consequential proceedings emanating therefrom.
2. It is claimed in the complaint that a deal was finalised with the complainant on one side and all the respondents on the other side. The work order was for Rs.5,049,60/- for the entire Mahasatsang and the terms of payments were that Rs.49,000/- was to be paid in advance by RTGS transfer, Rs. 1,55,960/- was in cash and balance payment was to be made by post dated cheque of 35 days. After completion of Mahasatsang, all the accused issued a cheque dated 3.5.2011, for a sum of Rs.3,00,000/- of Union Bank of India, Mohali. On presentation of the said cheque, it was deposited with the Bankers of the complainant but it was dishonoured with remarks ‘funds insufficient’. The complainant went to the office of respondents in Phase 3B-II, SAS Nagar, Mohali and met Mr. Dattaray (Rajan) Balighate, who told him that there was some financial problem and that the funds would be transferred to the account of the complainant within a week. The cheque was presented again with the banker but it was again returned unpaid.
3. The complainant had served a notice under Section 138 of the Negotiable Instruments Act, but it was returned by the postal authorities with a report ‘not known/not traceable returned to sender’. The accused persons did not care to make payment of the dishonoured cheque within 15 days as required under law. The Judicial Magistrate First Class, Mohali, summoned all the accused under Section 138 of the Negotiable Instruments Act, for facing trial without attributing specific part to each of the eight accused.
4. The claim of the petitioners is that on receipt of the notice, the petitioners have submitted a reply by registered post through their Advocate a copy of which has been placed on record as Annexure P-3 informing that the petitioners had not drawn thecheque and that neither the petitioners were connected with the drawer nor there was any connivance on their part with the drawer of the cheque which had been dishonoured.
5. Without making a reference to the reply, the complaint had been filed.
6. Mr. M.L. Sarin, learned Senior Advocate, assisted by Mr. Sahil Sharma, has vehemently contended that the criminal complaint Annexure P-1, summoning order dated 8.8.2011 Annexure P-2 and all the proceedings emanating therefrom against the petitioners are totally vitiated and that continuation of proceedings against the petitioners is an abuse of process of the Court. It has been argued that even if the allegations in the complaint are believed to be correct, no offence is made out against the petitioners.
7. As per the allegations in the complaint, the cheque was issued on behalf of M/s Credent Technologies Private Limited and it bears the signatures of Dattaray (Rajan) Balighate, who is respondent No.1 being Director. Respondent Nos.2 to 5, have also been described as the Directors of said Company whereas accused No.6, is described as National Development Head of the Company. It is not required to be determined in the present case whether the prosecution in the present case could be launched against one Director or all the Directors as the said Directors have not opted to file the petition before this Court on the ground that they are not in-charge or responsible for the conduct of the business of the Company.
8. The short question which is required to be determined in the present case is whether the petitioners could be prosecuted under Section 138 of the Negotiable Instruments Act, when admittedly, they are neither the Directors of the Company which had issued the cheque nor t
