IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision: 08.07.2025 Gurdiyal Singh ...Petitioner Versus Kotak Mahindra Bank Limited ...Respondent CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Present: Mr. Manu Sachdeva, Advocate for the petitioner.

***

MANISHA BATRA, J. (Oral)

1. The instant petition has been filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (which is pari materia with Section 482 of Cr.P.C.) seeking quashing of Criminal Complaint bearing NACT No. 774 of 2023 titled as ‘Kotak Mahindra Bank vs. Gurdiyal Singh’, filed under Section 138 of Negotiable Instruments Act, 1881 (for short ‘NI Act’) which is pending before the Court of Judicial Magistrate First Class, Chandigarh.

2. Brief facts of the case relevant for the purpose of disposal of present petition are that the aforementioned complaint has been filed by the respondent, which is a bank, on the allegations that the petitioner had obtained a loan from it for purchasing a vehicle. The petitioner had executed an agreement with the respondent accepting its terms and conditions regarding advancement of loan. The petitioner was to repay the loan in installments but he made defaults in payment of installments. Subsequently, in order to discharge his legal liability towards the said loan, the petitioner issued a cheque for a sum of Rs. 10,50,328/- in favour of the respondent- Bank but on presentation, the same dishonoured with the remarks ‘funds insufficient’. The petitioner failed to pay the amount of cheque in question, thereby compelling the respondent to file the aforementioned complaint.

3. It is argued by learned counsel for the petitioner that the impugned complaint is liable to be set aside as while passing the summoning order, the learned Magistrate ignored the fact that there was no material to show that he had obtained any loan from the respondent. He had given the cheque in question as a security for repayment of the loan taken by him. In fact, the petitioner was arrested on 03.10.2022 and was in custody in connection with DRI Case bearing No. 11 of 2022, under Sections 8, 20, 25, 27-A and 29 of the NDPS Act got registered by DRI, Gomti Nagar, Lucknow, Uttar Pradesh. The cheque in dispute is stated to have been issued by him on 07.12.2022, which is clearly not possible as he was in custody at that time. With these broad submissions, it is urged that the petition deserves to be allowed and the impugned complaint is liable to be set aside.

4. I have heard learned counsel for the petitioner at considerable length and have also gone through the material placed on record.

5. At the outset, it is to be considered as to whether, the prayer made by the petitioner for quashing of complaint can be considered by this Court in a petition filed under Section 528 of BNSS (corresponding to Section 482 of Cr.P.C.). The Hon’ble Supreme Court has laid down certain conditions whereby the complaint can be quashed by invoking the powers under the above mentioned Section in a case reported as Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalzi and others (1976) 3 SCC 736 which are as follows:-

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same, taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the lik