IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

101+205 CRM-M-39187-2024 Date of decision: January 30^th, 2025 Vivek Anand Ahuja .....Petitioner Versus State of Punjab .....Respondent CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL Present: Mr. P.S. Ahluwalia, Advocate for the petitioner.

Mr. Navdeep Singh, Deputy Advocate General, Punjab.

Mr. Harish Mehla, Advocate for the applicant-complainant. MANJARI NEHRU KAUL, J.

Petitioner is seeking the concession of anticipatory bail in FIR No.123 dated 22.07.2024 under Sections 303, 318, 336 and 338 of the BNS, registered at Police Station City Fazilka.

2. The learned counsel for the petitioner submits that the petitioner has been falsely implicated in the present case by the complainant, who is his real brother. It is contended that prior to the registration of the instant instant FIR, the petitioner had approached this Court seeking protection from harassment by the complainant and had prayed for the protection of his life and liberty. In support, attention of this Court has been drawn to Annexures P-9 and P-10, which include a writ petition filed by the petitioner and an order dated 18.07.2024 passed by a coordinate Bench of this Court.

3. It is further submitted by the learned counsel that the instant FIR has been registered by the complainant purely as an act of vendetta to settle scores with the petitioner. Additionally, it is argued that the registration of the FIR under the provisions of the IPC was violative of Article 20 (1) of the Constitution of India, as on the date of lodging the FIR, the Bharatiya Nyaya Sanhita had already come into force, thereby rendering the IPC inoperative.

4. In addition, the learned counsel for the petitioner also submits that the FIR in question is nothing but an attempt to arm-twist the petitioner, as he had previously initiated proceedings under Section 138 of The Negotiable Instruments Act (hereinafter referred to as ‘N.I. Act’), against the complainant. It is pointed out that multiple litigations, including civil disputes, are pending between the parties. The allegations in the FIR pertain to the misuse of a cheque admittedly signed by the complainant, wherein the petitioner allegedly filled in the amount and date before presenting it for encashment. The complainant, as per the learned counsel, has never disputed his signatures on the cheque, and at best, the allegations in the FIR constitute a defence in the proceedings under Section 138 of the N.I. Act rather than a substantive criminal offence.

5. Learned counsel for the petitioner has placed reliance on Oriental Bank of Commerce Versus Prabodh Kumar Tewari 2022 (7) S.C.R. 72, wherein it has been held that once the drawer of a cheque admits his signatures, the mere act of the holder filling in the details does not absolve the drawer of his liability. It is further submitted that the complainant does not even allege that the cheque was stolen by the petitioner; rather, it is admitted that the cheque was in the possession of the petitioner. The FIR, therefore, is merely an attempt by the complainant to use the police as a tool to gather evidence in the complaint case pending between the parties under Section 138 of the N.I. Act.

6. It has still further been argued that the complainant, despite being called by the trial Court to present his defence in the complaint case under Section 138 of the N.I. Act, chose instead to lodge the present FIR, thereby abusing the process of law. Notice of accusation has already been served upon the complainant in the cheque dishonor case.

7. With respect to the application i.e. CRM No.44556 of 2024 under Section 528 of the BNSS read with Sections 379 and 215 of the BNSS filed by the complainant, it is argued by the learned counsel that the allegations of perjury are baseless, as the affidavit in question was executed and signed by the petitioner himself. The petitioner’s affidavit annexed as Annexure P-7, records that he relinquished his share in a property situat