not M-7791 of 2011(O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.
not M-7791 of 2011(O & M) Date of decision:-04.02.2013 Mahesh Inder Singh Thind ...Petitioner Versus Goyal Electronic and others ...Respondents CORAM: HON'BLE Ms.JUSTICE SABINA Present:- Ms.Naiya Gill, Advocate for the petitioner.
Mr.Animesh Sharma, Advocate for the respondents.
The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.in short) seeking quashing of criminal complaint No.2217-T dated 15.2.2005 under Section 138 of Negotiable Instruments Act, 1881 (in short 'the Act') and under Section 420 Indian Penal Code, pending before the court of learned Judicial Magistrate, Patiala.
Learned counsel for the petitioner has submitted that Criminal Misc.
not M-7791 of 2011(O & M) -2- father of the petitioner was running a partnership firm in the name and style of M/s Ekta Electronics along with Luxmi Devi.
Father of the petitioner died on 12.9.2005.
Since the petitioner did not want to continue with the said firm as a partner, the partnership firm was dissolved vide Dissolution Deed (Annexure P-4) dated 24.3.2006.
The cheque in question dated 11.12.2004 was neither signed by the petitioner not the petitioner had any concern with the partnership firm when the said cheque was issued by the firm.
After hearing learned counsel for the parties I am of the opinion that the instant petition deserves to be allowed.
In the case of State of Haryana versus Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C.Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- Criminal Misc.
not M-7791 of 2011(O & M) -3- (1) Where the allegations made in the fiRs.information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the fiRs.information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just Criminal Misc.
not M-7791 of 2011(O & M) -4- conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
We also give a note of caution to the effect 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; that 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 and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to Criminal Misc.
not M-7791 of 2011(O & M) -5- its whim or caprice.”
Annexure P-4 is the deed of dissolution of the firm dated 24.3.2006.
A perusal of the same reveals that Joginder Singh Thind and Luxmi Devi were the partners of the firm i.e.M/s Ekta Electronics in terms of the deed of partnership dated 17.10.1992.
Joginder Singh Thind died on 12.9.2005 and the firm was dissolved.
Petitioner, who is the son of deceased Joginder Singh Thind decided not to continue with the firm, hence, the Dissolution Deed (Annexure P-4) was executed.
Thus, from Annexure P-4 it is revealed that the petitioner was not a partner of the firm rather the father of the petitioner was partner of the firm, which had come into existence in the year 1992.
The firm was dissolved on account of death of father of the petitioner on 12.9.2005 and the petitioner decided not to continue with the firm.
The cheque in question was issued by the firm on 11.12.2004.
In these circumstances, the petitioner, who had no concern with the partnership firm not had signed the cheque in question, cannot be made to face the criminal proceedings with regard to dishonour of the cheque in question.
In the facts and circumstances of the case it would be just and expedient to quash the criminal proceedings against the petitioner lodged by respondents No.1 and 2 with regard to dishonour of cheque in question.
not M-7791 of 2011(O & M) -6- Accordingly, this petition is allowed.
Criminal Complaint No.2217-T dated 15.2.2005 under Section 138 of the Act and under Section 420 of the Indian Penal Code, pending before the court of learned Judicial Magistrate, Patiala, and all the consequential proceedings, arising therefrom, are quashed.
February 04, 2013 ( SABI NA) Vijay Asija JUDGE