IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Miscellaneous No. M-30221 of 2007
Date of Decision: August 11, 2008
Rupesh Malhotra
.....PETITIONER(S)
VERSUS
Charanjit Dua & Another
.....RESPONDENT(S)
. . .
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Mr. Hariom Attri, Advocate, for the
petitioner.
Mr. J.S. Mehndiratta, Advocate, for
respondent No.2.
. . . AJAI LAMBA, J (Oral)
This petition seeks quashing of complaint
No.3/2 dated 4.1.2007 (Annexure P-1) titled ‘Charanjit
Dua vs. Rohit Madan & Others’ lodged for commission of
offences under Sections 420, 120-B, 34 IPC and Sections
138/142 of the Negotiable Instruments Act, 1881 (for
short, `the Act’), and order of summoning dated
4.1.2007 (Annexure P-2) vide which the accused have
been summoned to stand trial for offences under Section
138 of the Act.
Contention of the learned counsel for the
petitioner is that complaint was filed with the
Crl. Misc. No. M-30221 of 2007 [2]
allegations that younger brother of complainant
(Charanjit Dua) was to be sent abroad i.e. Canada. The
allegation has been made against petitioner, Rupesh
Malhotra who was known to the complainant as well as
the other accused namely, Rohit Madan. As per the
allegations in the complaint, the petitioner suggested
the complainant to contact the other accused i.e. Rohit
Madan. It was in the presence of Rohit Madan that the
petitioner discussed the matter, considered the
passport and other related documents of the brother of
the complainant during the first week of April, 2006.
Complainant was thereafter induced that the brother of
the complainant would be sent abroad if Rs.3 lac were
paid. The complainant did not have such a huge amount.
He therefore collected the money from his friends. The
complainant handed over the money to the petitioner on
3.4.2006 in the presence of witnesses. After receiving
the money, the petitioner promised the complainant that
his brother would be sent abroad within two months from
the date of receipt of the money. In case the
petitioner failed to send the brother of the
complainant abroad, the entire amount would be returned
within 15 days. The complainant demanded some
guarantee.
The allegation further is that the
petitioner handed over three cheques (post dated) of
the value of Rs.30,000/- each of different dates which
had been issued by the other accused i.e. Rohit Madan.
The cheques subseqnelty were dishonoured whereupn the
Crl. Misc. No. M-30221 of 2007 [3]
proceedings as noticed above, were initiated.
Learned counsel contends that even if the
allegations are taken to be true at their face value,
no offence under Section 138 of the Act can be said to
have been committed by the petitioner in so much as,
admittedly, the petitioner had not issued the cheque.
It was co-accused, Rohit Madan, who had issued the
cheques from his account.
I have considered the contentions of the
learned counsel for the petitioner and respondent.
Perusal of the order of summoning
indicates that both the accused have been summoned for
commission of offence under Section 138 of the Act. It
is however the admitted case of the complainant that
cheques had been issued by the co-accused from the
Kotak Mahindra Bank, Account No.01720120001872 of the
co-accused as has been pleaded in Para 6 of the
complaint. The petitioner had not issued the cheque.
This being the admitted position that the
petitioner is not the signatory of the cheques, in view
of the provisions of Section 138 of the Act, he could
not have been summoned to stand trial for commission of
offence under Section 138 of the Act.
In view of the above, this petition is
allowed.
Complaint No.3/2 dated 4.1.2007 (Annexure
P-1) titled ‘Charanjit Dua vs. Rohit Madan & Others’
lodged for commission of offences under Sections 420,
120-B, 34 IPC and Sections 138/142 of the Negotiable
Crl. Misc. No. M-30221 of 2007 [4]
Instruments Act, 1881 and order of summoning dated
4.1.2007 (Annexure P-2) against the petitioner are
quashed.
(AJAI LAMBA)
August 11, 2008 JUDGE
avin