High Court of Punjab and Haryana, Chandigarh
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KAPIL MEHTA & Ors v. COL. (RETD.) MOHAN SINGH & Ors - CRM-21999-M-2003  RD-P&H 17 (18 May 2005)
& Crl. Misc. No.22001-M of 2003
Kapil Mehta and others
Col. (Retd.) Mohan Singh and others
Present:- Shri Sham Lal, Advocate for the petitioners.
Shri Jaswinder Singh, Advocate for respondent No.1.
Surya Kant,J. (Oral):
Since common questions of law and facts are involved in these two petition, the same are disposed of together with this common order.
For the sake of brevity, the facts are being taken from Crl. Misc. No.21999- M of 2003.
The three petitioners have approached this Court for quashing of the complaint dated 17.12.1997 (Annexure P-1) filed under Section 138 of the Negotiable Instruments Act, 1881 as well as the summoning order dated 28.4.1999 (Annexure P-5) and all the consequential proceedings arising therefrom.
The aforesaid relief has been sought primarily on the premise that the alleged cheque dated 1.11.1997 (Annexure P-2) which is stated to have been dishonoured for want of sufficient funds was issued in favour of Crl. Misc. No.21999-M of 2003 - 2 -
the complainant by P.S. Saini (respondent No.4) for and on behalf of Bee Ell Investments, which, according to the petitioners, is a business concern wherein they have no stakes whatsoever and that the petitioners have been falsely implicated in the impugned complaint merely because they along with P.S. Saini happen to be Directors of a Company, namely, Bee Ell Forest Ltd.
The law in relation to quashing of criminal proceedings is well settled. In the case of R.P.Kapur v. State of Punjab, AIR 1960 SC 866, which has been recently reiterated by their Lordships of the Supreme Court in Zhandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque and Another, (2005) 1 SCC 122, the following parameters for such interference have been laid down:-
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. Want of sanction.
(ii) Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
Crl. Misc. No.21999-M of 2003 - 3 -
In order to bring the case within any of these parameters, one has to read the allegations in the impugned complaint on their face value.
It will be profitable to reproduce the specific allegations made by the complainant in paragraphs 2 to 4 and 6 of the impugned complaint and the same read as follows:-
"2. That the accused 3 to 9 formed a company and were incorporated by the Registrar of Companies, Punjab, H.P. & Chandigarh on 17.7.1996 under the name of Bee Ell Forests Ltd. and their names and addresses appear at page 14 of Memorandum and Articles of Association of Bee Ell Forests Ltd. - accused No.1. The accused 3 to 9 are original promoters of the company and as per the knowledge of the complainant are incharge of and responsible to the company for the conduct of business of the company and are thus liable under section 141 of the Negotiable Instruments Act.
The First Directos of the Board are accused 3 to 5.
3. That the accused as per the objects stated in the Memorandum of Association also started business in the name & style of Bee Ell Investments, which is directly managed & controlled by the accused No.1,3 to 9.
4. That in response to news paper advertisements issued by Crl. Misc. No.21999-M of 2003 - 4 -
the accused inviting investments the complainant deposited as amount of Rs.2,21,000/- with the accused. The accused in return promised to pay monthly interest on the amount deposited which the accused used in carrying out various ventures.
6. That the accused issued cheque No.026307 for an amount of Rs.6000/- drawn on Centurion Bank Ltd., SCO 52-53, Sector 9-D, Chandigarh payable at Chandigarh in order to discharge their liability and to make partial payment towards the amount along with interest deposited by the complainant with the accused." (emphasis applied)
The specific allegations made by the complainant that accused 3 to 9 which include the three petitioners herein also started business in the name and style of "Bee Ell Investments" which is 'managed' and 'controlled' by them, completely belie the stand sought to be taken by the three petitioners in these quashing proceedings. It may also be mentioned here that as per the Memorandum and Articles of Association of Bee Ell Forests Ltd. (Annexure P-6), there are seven founding Directors of the aforesaid company which undisputedly include the three petitioners herein, apart from respondents No.4 to 6.
Thus, it will be too premature to return any conclusive finding Crl. Misc. No.21999-M of 2003 - 5 -
of fact that the petitioners being Directors of the aforesaid Forest Company are not liable to face penal consequences due to dishonouring of the cheques issued for and on behalf of "BEE ELL INVESTMENTS". The various pleas raised in support of the prayer made in this petition, viz one of them was minor and/or the cheques were issued on behalf of some other concern to which they do not have any concern, etc., are based upon disputed questions of fact and need to be proved by leading evidence. The regular trial is, therefore, inevitable.
Consequently, I do not find any merit in this petition which is accordingly dismissed. The interim order dated August 13, 2004 stands vacated.
The Petitioners will, however, be at liberty to raise all the pleas before the learned Magistrate at an appropriate stage and the same shall be considered in accordance with law.
October 18, 2005 [ Surya Kant ]
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