Criminal Misc. No.M-6702 of 2008 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Misc. No.M-6702 of 2008 (O&M)
Date of decision: 5.3.2009
Jaswant Singh
......Petitioner
Versus
Mohan Singh
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.N.S.Dadwal , Advocate,
for the petitioner.
Mr. N.G.Sharma, Advocate,
for the respondent.
****
SABINA, J.
CRM No.11609 of 2009
Application is allowed. Reply on behalf of the respondent
is taken on record.
CRM No.M-6702 of 2008
This petition has been filed by Jaswant Singh under
Section 482 of the Code of Criminal Procedure (“Cr.P.C. for short) for
quashing of complaint (Annexure P-2) filed under Section 138 of the
Criminal Misc. No.M-6702 of 2008 (O&M) 2
Negotiable Instruments Act, 1888 (for short- ” the Act”) pending
before the Court of Sh.K.K.Bansal, JMIC, Ludhiana titled as Mohan
Singh vs. M/s R.S.Auto and others, summoning order dated
21.1.2008 (Annexure P-3) and subsequent proceedings arising
therefrom.
Case of the complainant, in brief, is that accused No.1
was a partnership firm, whereas, accused Nos. 2 and 3 were its
partners. Accused took a loan of Rs.1,00,000/- from the complainant
on 29.4.2000 and agreed to return the same after two years along
with interest @ 12% per month. However, the said amount was not
returned and ultimately a writing was executed on 1.4.2003, wherein
accused agreed to return the loan amount along with interest by
31.3.2005. The said loan amount was not returned and ultimately
accused issued two cheques in favour of the complainant dated
7.12.2007 amounting to Rs. 1,00,000/- and Rs.68,000/- each. When
the cheques were presented for encashment, they were returned
vide memo dated 12.12.2007 due to insufficient funds. Despite the
notice issued, thereafter, the accused failed to make the payment
and hence, the complaint in question was filed. After recording of
preliminary evidence, accused were summoned to face trial under
Section 138 of the Act by Judicial Magistrate, Ist Class, Ludhiana
vide order dated 21.1.2008. Hence, the present revision petition.
Learned counsel for the petitioner has submitted that the
petitioner had already retired from the firm in question on 31.3.1999
Criminal Misc. No.M-6702 of 2008 (O&M) 3
and retirement deed in this regard was duly executed i.e. Annexure
P-1. The loan amount in question was taken after retirement of the
petitioner from the firm and hence, the petitioner could not be
summoned to face the trial. The cheque in question was not signed
by the petitioner but was signed by Harjinder Singh, who was the
sole proprietor of the firm in question.
Learned counsel for the respondent, on the other hand,
has submitted that the retirement deed had been executed by the
petitioner in connivance with the alleged continuing partner Harjinder
Singh, who was none other than the elder brother of the petitioner.
In fact, the petitioner was still continuing to be a partner of the firm
as was evident from the agreement deed dated 2.5.2000 (Annexure
P-4) placed on record by the respondent.
In the present case, the loan in question was taken in the
year 2000 and the cheques in dispute were issued in the year 2007
allegedly for repayment of the loan amount. The case of the
petitioner is that the petitioner already stood retired from the firm in
question vide retirement deed dated 31.3.1999 (Annexure P-1)
before the loan in question was advanced, whereas, the case of the
respondent is that the petitioner still continued to be a partner of the
firm in question as was evident from the agreement deed dated
2.5.2000. The fact as to whether the petitioner stood retired vide
retirement deed dated 31.3.1999 (Annexure P-1) or was still
continuing to be a partner of the firm in terms of the agreement deed
Criminal Misc. No.M-6702 of 2008 (O&M) 4
dated 2.5.2000 would more appropriately be gone into and
considered during trial. At this stage, in the facts of the present case,
it would not be just and expedient to quash the criminal proceedings.
It has been held in State of Haryana and others vs.
Bhajan Lal and others, 1992 Supp (1) SCC 335 that the power of
quashing a criminal proceeding should be exercised very sparingly
and with circumspection and that too in the rarest of rare cases.
The extraordinary or inherent powers do not confer an arbitrary
jurisdiction on the court to act according to its whim or caprice. The
court will not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in the
FIR or the complaint.
Accordingly, this petition is dismissed.
(SABINA)
JUDGE
March 05, 2009
anita