Allowed

Ramesh Sodhi v. Vimal Kapoor

Punjab & Haryana HC1 Jul 2009CRM-M/23048/2008

Case brief

AI extract

What is this about?

The High Court, exercising inherent powers under Section 482 Cr.P.C., allowed a petition to quash a complaint under Section 138 of the Negotiable Instruments Act. The court held that the petitioner's inadvertent delay in arranging funds for cheque payment, followed by repayment upon notice, constituted grounds to quash the proceedings as an abuse of process.

What did the court decide?

The petition was allowed; the impugned complaint dated 21.11.2007 under Section 138 of the Negotiable Instruments Act and all consequent proceedings were quashed.

Ramesh Sodhi Vs Vimal Kapoor — Cheque Dishonour | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl. Misc. No. 23048-M of 2008 Date of Decision: 1.7.2009

Ramesh Sodhi

.. Petitioner

Vs.

Vimal Kapoor

.. Respondent.

CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,

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Present:Mr. Jagjit Singh, Advocate for the petitioner.

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**Mr.Rajwinder Kaur, Advocate for the respondent. *****

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ARVIND KUMAR, J.

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Through the present petition under Section 482 Cr.P.C., the petitioner is seeking quashing of complaint dated 21.11.2007 (Annexure P/6) filed by respondent under Section 138 of the Negotiable Instruments Act (for brevity, the Act) and consequent proceedings, wherein the petitioner has been summoned for having issued the cheque bearing No. 253214 dated 1.8.2007 for an amount of Rs.60,000/-, the payment of which was not made to the drawee on account of the payment being stopped by the drawer. According to the complainant despite having issued the legal notice, the payment was not made by the petitioner, leading to the institution of the impugned complaint.

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In response to the notice of motion, the respondent made representation through his counsel and filed the reply opposing the quashing of the complaint.

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I have heard learned counsel for the parties and have also gone through the paper-book carefully.

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It emerges out from the record that in response to the demand notice dated 11.10.2007 got issued by the complainant, the petitioner-

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accused replied the same and sent the demand draft dated 24.10.2007 for Rs.60,000/- to the complainant, the amount of which admittedly was credited in his account on 29.10.2007. Any how on 28.11.2007 the impugned complaint was filed by the respondent-complainant.

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What has been contended by learned counsel for the respondent during the course of arguments as well as by filing the reply, is that in fact the petitioner-accused issued two cheques bearing No. 253214 and 253215 and the said amount of Rs.60,000/- was made by the petitioner in respect of cheque No. 253215 while for not making the payment of cheque No. 253214 the impugned complaint has been filed, wherein the petitioner has been rightly summoned. But there is no substance in the contention raised by learned counsel for the complainant. The complaint filed by the complainant nowhere speaks of issuance of two cheques by the accused, but only with regard to cheque No. 253214 for Rs.60,000/-. Even in the notice (Annexure P-1) there is only demand with regard to amount of Rs.60,000/of cheque No. 253214. Rather a perusal of bank statement and certificate (Annexures P-7 and P-8 respectively) reveal that the cheque No. 253215 was for Rs.30,000/-, the amount of which was debited in the account of the complainant on 27.9.2007.

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In the case of D.Vinod Shivappa Vs. Nanda Belliappa 2006 (3) RCR (Criminal) 145, the Hon'ble Apex Court observed as follows:-

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“One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been

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dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons.”

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In view of the discussion above, the continuance of prosecution against the petitioner is nothing but an abuse of process and there is no impediment to exercise the inherent powers under Section 482 Cr.P.C. and thereby to quash the impugned complaint and subsequent proceedings thereto against the petitioner.

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It is ordered accordingly. The petition stands allowed accordingly.

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(ARVIND KUMAR) JUDGE

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July 1,2009 Jiten

Ramesh Sodhi v. Vimal Kapoor

Case brief

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Ramesh Sodhi v. Vimal Kapoor

Case brief

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