The court established that the essential ingredients for the offences under Section 420/406/409 IPC were lacking and that the second complaint was filed with mala fide intention, constituting an abuse of process of law.

AJIT BHARIHOKE, J.

1. G.K. Sahwney, the petitioner herein, vide this petition under Section 482 Cr.P.C. seeks quashing of criminal complaint No.385/2001 titled “Jai Prasad Jain Vs. Rajasthan Ball Bearing Ltd. & Ors.” pending in the court of ACMM, Patiala House, New Delhi qua him.

2. Briefly put, facts relevant for the disposal of this petition are that on 4.4.1998, respondent No.2 filed a complaint under Section 138 of the Negotiable Instruments Act (N.I.Act) against M/s Rajasthan Ball Bearing Ltd. and others, including the petitioner. It was alleged in the complaint that pursuant to an advertisement issued by M/s Rajasthan Ball Bearing Ltd. seeking fixed deposit, respondent complainant opened three fixed the deposit accounts which were due to mature with 15% interest on October, 1997, 25th January, 1998 and 25th January, 1998 respectively. On maturity of those fixed deposit receipts, aforesaid company issued 11 cheques in favour of the respondent/complainant to meet the liability of the principal deposit and interest. Those cheques, on presentation, were dishonoured with the remarks “funds insufficient”. This led to issue of demand notice under Section 138 N.I. Act to the company as well as its Director Sandeep Sawhney and the petitioner. They, however, failed to make payment of the amount of cheques within the requisite period of 15 days from the date of receipt of demand notice. This led to filing of complaint under Section 138 N.I. Act against the company as well as two others, including the petitioner.

3. While aforesaid complaint under Section 138 N.I. Act was pending, respondent filed the subject complaint under Section 190/403/420 IPC against the aforesaid company and two others, including the petitioner on the same set of facts. Learned M.M. conducted preliminary enquiry and on consideration of the second complaint and preliminary evidence led in support of the complaint, found that a prima facie case of commission of offences under Section 420/406/409/34 IPC was disclosed. He, accordingly, summoned the accused persons named in the complaint, including the petitioner.

4. Mr.Jayant K.Sud, Advocate appearing for the petitioner has submitted that the impugned summoning order dated 26.2.2001 is bad in law for the reason that the allegations in the complaint as also the preliminary evidence adduced in support of the complaint does not disclose commission of the offence under Section 420/406/409 IPC by the petitioner. It is further contended that the complaint filed by respondent No.2 is an abuse of process of law and it has been filed with mala fide intention to harass the petitioner. Expanding on the argument, learned counsel for the petitioner submits that admittedly a complaint under Section 138 N.I. Act was filed against the petitioner by respondent No.2 in the year 1998. On the same set of facts, two years later, the petitioner had filed the instant complaint without giving any explanation as to what prevented complainant respondent No.2 from including the offence under Section 420/406/409 IPC. In support of this contention, learned counsel for the petitioner has relied upon the judgment of Supreme Court in the matter of G.Sagar Suri and Another Vs. State of U.P. and Others (2000) 2 SCC 636.

5. Learned counsel for the respondent No.2, on the contrary, has argued in support of the impugned order. It is contended that learned Metropolitan Magistrate has rightly appreciated the allegations in the complaint and the preliminary evidence and arrived at a conclusion that a prima facie offence under Section 420/406/409/34 IPC is disclosed against the petitioners. It is further contended that cause of action for filing of a complaint under Section 138 N.I. Act is distinct from the cause of action in filing the complaint under Section 420/406/409/34 IPC. Therefore, there is no bar under law to file two different complaints for distinct offences on the same set of facts. Thus, it is urged that the petition be dismissed.