The acquittal in a prior complaint can establish the absence of mens rea and legally enforceable debt, rendering a subsequent complaint unsustainable.

JUDGMENT

Arvind Singh Sangwan, J. (Oral) - Prayer in this petition, filed under Section 482 Cr.P.C., 1973 is for quashing of the Criminal Complaint Case No. 32040/2013 instituted on 24.01.2013 titled as M/s Singh Finance Corporation v. Manoj Kumar under Sections 406 and 420 of the Indian Penal Code (for short 'IPC') (Annexure P-3) and all subsequent proceeding arising therefrom including summoning order dated 15.07.2014 (Annexure P-4), passed by the trial Court, vide which, the petitioner has been summoned to face trial under Section 420 of the IPC.

2. This petition is pending since 2015 and while issuing notice of motion, further proceedings before the trial Court were stayed. However, noticing the fact that no one is appearing on behalf of the petitioner and the respondent, the interim order was vacated on 21.05.2018.

3. Learned counsel for the petitioner has argued that on the same set of allegations, prior to filing of the impugned complaint, respondent-complainant M/s Singh Finance Corporation through its partner Pritpal Singh had filed a complaint under section 138 of the Negotiable Instruments Act (for short 'N.I. Act') on account of dishonouring of a cheque of Rs. 31,240/-. The petitioner-accused appeared in the said complaint and contested the same and the Judicial Magistrate First Class, Jalandhar, vide order dated 20.01.2014, acquitted the petitioner by passing the following order:

"14. A careful perusal of the case file transpires that the loan has not been denied by the accused and the accused has also not denied his signatures on the cheque in question. However, he has stated that he made the payment of the entire loan amount to the employee of the complainant vide receipt Ex. D-1. Now for the offence under section 138 of NI Act the complainant has to prove that he or she gave any amount to the accused and the accused issued a cheque in discharge of his or her legal liability and the same has been returned back by the bank due to the reason given in the bank memo and thereafter a legal notice within the stipulated period of thirty days from the receiving information from the bank has to be issued to the accused and if the accused failed to pay the amount within the period of fifteen days after receiving the legal notice then the complainant can file the complaint under section 138 of NI Act within the period of one month from the lapse of fifteen days granted to the accused for making the payment. In the present case, the loan is admitted, issuance of cheque is also admitted, bank memo and legal notice have been proved by the complainant and now the burden shifted upon the accused to prove that there was no legally enforceable liability against him at the the time of issuance of the cheque in question and a careful perusal of the evidence led by the accused i.e. the receipt Ex. D-1 clearly shows that there was no legally enforceable liability of the accused at the time of issuance of the cheque in question. The complainant in his cross examination has admitted that said Harjit Singh was working as an employee with his firm and he was authorised to collect the installments from the persons to whom the complainant firm has granted the loan and to issue the receipt regarding the same and in the present case also the complainant has identified the signatures of Harjit Singh on Ex. D-1 and further he has admitted that the letter head on which the said receipt has been issued is that of complainant firm. However, the learned counsel for complainant has argued that at the time of issuance of the said receipt, Harjit Singh was not employee with the firm. But, no record regarding the same has been produced on record by the complainant to show that on 25.06.2006 i.e. the date of receipt Ex. D-1 Harjit Singh was not employee with his firm.

15. Further as regards the arguments addressed by the learned counsel for complainant that Harjit Singh has stolen the letterhead of complainant firm, in this regard no complaint has been