Allowed

Shilpa Aggarwal @ Sweta v. State of Punjab and Ors.

Punjab & Haryana HC13 Oct 2011CRM-M/10344/2011

Case brief

AI extract

What is this about?

Petitioner challenged FIR under IPC sections for alleged cheating in view of pending proceeding under Section 138 NI Act. Court allowed petition, holding simultaneous prosecution abuse of process per G. Sagar Suri precedent, quashing FIR but leaving NI Act trial intact.

What did the court decide?

FIR No.5 dated 6.1.2011 and all subsequent proceedings under Sections 420 and 406 IPC are quashed.

Shilpa Aggarwal @ Sweta Vs State… — Contract and Commercial Disputes | Punjab & Haryana HC (2011)

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CRIMINAL MISC. NO.-M 10344 OF 2011 :{ 1 }:

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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DATE OF DECISION: OCTOBER 13, 2011

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Shilpa Aggarwal @ Sweta

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.....Petitioner

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VERSUS

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State of Punjab and another

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....Respondents

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CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

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Whether Reporters of local papers may be allowed to see the judgement?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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PRESENT: Mr. Arun Singla, Advocate, for the petitioner.

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Mr. A. S. Jattana, Addl.A.G., Punjab, for the State.

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Mr. Vikas Chaudhary, Advocate, for respondent No.2.

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RANJIT SINGH, J.

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The petitioner seeks quashing of the FIR No.5 dated 6.1.2011, registered under Sections 420, 406 IPC at Police Station Dhanaula, District Barnala. The allegation against the petitioner is that she had taken a sum of `9,00,000/- from the complainant for sending him abroad but thereafter did not make any arrangement to send the

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CRIMINAL MISC. NO.-M 10344 OF 2011 :{ 2 }:

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complainant abroad. The petitioner also did not return the money but issued four separate cheques Nos.125809, 125811, 125817 and 125819 for sum of 3,00,000/-, 1,00,000/-, 2,00,000/- and 75,000/- respectively. It is alleged that the petitioner had returned only a sum of `50,000/- to the complainant.

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The petitioner learnt about the cheques having been dishonoured when she received a legal notice under Section 138 of the Negotiable Instrument Act. The petitioner stands summoned and is appearing in the said case. For the same allegation, even an FIR has been registered against her. The petitioner has accordingly filed this petition for quashing the FIR on the ground that prosecuting the petitioner in FIR as well as under Section 138 of the Negotiable Instruments Act would be an abuse of the process of law. This is so urged on the basis of law laid down by the Hon'ble Supreme Court in G.Sagar Suri and another Vs. State of U.P. and another, reported as 2000 (1) RCR (Crl.) 707 (Supreme Court). The Hon'ble Supreme Court has held in this case that when a criminal complaint under Section 138 of the Negotiable Instrument Act is already pending, then the accused they would suffer a consequence of an offence under the said Section and no occasion would arise for the complainant to prosecute the appellant under Sections 406 and 420 IPC. The action to initiate these two

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CRIMINAL MISC. NO.-M 10344 OF 2011 :{ 3 }:

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proceedings is held to be amounting to abuse of process of Court and the prosecution was held liable to be quashed.

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Relying on the judgment in the case of G.Sagar Suri's case (supra), this Court in Harinderpal Singh Vs. State of Punjab, 2007 (4) RCR (Criminal) 534, has held that the prosecution under Section 420 IPC is not maintainable if complaint under Section 138 of the Negotiable Instrument Act is pending. Hon'ble Supreme Court in G.Sagar Suri's case (supra), has observed as under:-

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“We agree with the submissions of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly who are the parents of the Managing Director of Ganga Automobiles Ltd. In the instant criminal case without regard to their role or participation in the alleged offences with a sole of purpose of getting the loan due to the Finance Company by browbeating and tyrannizing the appellants of criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the

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CRIMINAL MISC. NO.-M 10344 OF 2011 :{ 4 }:

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appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed, which we do.”

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On the other hand, learned counsel for the respondents would canvass that both the proceedings can be continued and in support has made reference to Full Bench decision of the Andhra Pradesh High Court in the case of M/s OPTS Marketing Pvt. Ltd. And others Vs. State of A.P. And others, 2001, Cri.L.J. 1489. The Full Bench has taken a view that prosecution under Section 420 is maintainable even after introduction of Section 138 of the Negotiable Instrument Act for dishonour of cheque and the proceedings can not be quashed if it is alleged in the complaint that the accused person has dishonest intention at the time of issuing the cheques. Similar view has been expressed by the Allahabad High Court,in Veer Singh Yadav Vs. State of U.P. and another, AIR 2011 (NOC) 264 (All.). In this case, it is viewed that when post-dated cheques are issued for payment of price of goods purchased or in discharge of antecedent debt or towards payments of goods supplied earlier and the allegations of dishonest intentions not to pay at the time of issuance of cheque is alleged, then offence under Section 420 IPC would also be made out.

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From the facts, as pleaded in this case, it can be

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CRIMINAL MISC. NO.-M 10344 OF 2011 :{ 5 }:

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said that the cheques were not issued to discharge any liability. The cheques were allegedly issued to return some money, which was statedly paid to the petitioner for sending the complainant abroad. In fact, the petitioner claims to have issued no such cheques in favour of the complainant and has pleaded that these cheques are forged one. Ofcourse, the petitioner has to establish this defence before the Court. The short question under consideration before this Court is whether in the facts and circumstances of this case, any allegations under Section 420 IPC is made out or not. In the FIR, the complainant has simply said that he had paid money and has been cheated. Some cheques were allegedly issued by the petitioner to pay back the amount, which were dishonoured and the complaint under Section 138 of the Negotiable Instrument Act is filed by the complainant. The offence under Section 420 IPC would be made out only if it is alleged that the petitioner had dishonest intention not to pay the amount at the time of issuing cheques. As per the averments, the petitioner has repaid a sum of `5,00,000/-, which may indicate that intention not to pay, can not be attributed from the facts in this case. Permitting prosecution of the petitioner under both Sections for same allegation may lead to abuse of process of Court and appears to be in violation of law laid down in G.Sagar Suri's case (supra).

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CRIMINAL MISC. NO.-M 10344 OF 2011 :{ 6 }:

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The FIR, therefore, and all subsequent proceedings are quashed. Any observation made in this case, however, will not have any effect on the trial, which is in progress against the petitioner for an offence under Section 138 of the Negotiable Instrument Act.

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The petition is accordingly allowed.

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October 13, 2011 ( RANJIT SINGH ) khurmi JUDGE

Shilpa Aggarwal @ Sweta v. State of Punjab and Ors.

Case brief

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Shilpa Aggarwal @ Sweta v. State of Punjab and Ors.

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