On December 22, 2022, the Punjab and Haryana High, while dismissing a petition filed under Section 482 Cr.P.C. for quashing a Complaint under Section 138 of the Negotiable Instruments Act, 1881, observed that the court cannot embark upon an enquiry as to the reliability or genuineness of the allegations made in the FIR/complaint and the defence of the accused cannot be looked at by the Court in summary proceedings under Section 482 Cr.P.C.
Brief Facts:
A complaint under Section 138 read with Section 142 of the Negotiable Instruments Act was filed by the respondent with the allegations that M/s Shri Hari Agro through its proprietor Ms. Monika Goyal (borrower) had been granted a credit facility against collateral security as well as a personal guarantee of the guarantors including the petitioner-Guljari Lal. The respondent had sanctioned a credit facility amounting to Rs.1 crore. Since the borrower defaulted in the repayment of the credit facilities granted and renewed from time to time, the Bank made a demand of the amount due and all the credit facilities were recalled from the borrower as well as other guarantors including the petitioner. The petitioner issued a cheque No.006805 dated 16.07.2018 drawn on the State Bank of Bikaner and Jaipur, Hissar for an amount of Rs.50 lakhs in discharge of the legal liabilities towards part-payment of the total amount due in all the credit facilities.
On presentation, the cheque was dishonoured with the remarks 'Funds Insufficient'. Thereafter, a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 was filed against the petitioner and summon was issued. Pursuant to it, the petitioner preferred a Criminal Revision before the Court of the Additional Sessions Judge, which was dismissed. Hence, the present petition was filed for quashing of the complaint filed under Section 138 of the Negotiable Instruments Act, 1881, the summoning order dated 01.10.2018, and the subsequent proceedings arising therefrom.
Contentions of the Petitioner:
The counsel for the petitioner submitted that the allegations as levelled in the complaint, petitioner had given the cheque in question as security for the credit facility availed by Monika Goyal, Proprietor M/s Shree Hari Agro firm were incorrect. A perusal of the sanction letter showed that the name of the petitioner did not figure as a guarantor and it did not contain his signatures.
He contended that the cheque in dispute had been issued by the petitioner in view of the guarantee given for the loan of his brother-in-law Pehlad Raj Goyal who was having an account at the Hissar Branch. The disputed blank cheque was lying with the respondent as a security cheque for Mr. Pehlad Raj Goyal. The respondent had wilfully and with mala fide intention misused the cheque for the liability of M/s Shree Hari Agro. In fact, the petitioner had no concern and had never stood as a guarantor either for the said firm or its proprietor Ms. Monika Goyal as alleged in the complaint.
He further argued that as the complainant was a resident of Hisar and the complaint was preferred at Chandigarh, so, the provisions of Section 202 Cr.P.C., with respect to the holding of an enquiry, were ought to be complied prior to the summoning of the petitioner.
Observations of the Court:
The Hon’ble court observed that according to the stand of the petitioner, the cheque in question had been given as a security for the loan availed by Shri Pehlad Raj Goyal, was not borne out from the record. The petitioner, neither at the revisional stage nor before this Court produced any document to show that Shri Pehlad Raj Goyal, his brother-in-law had obtained a loan for which the said cheque had been issued as a security. In the loan sanction letter, petitioner was shown as a guarantor.
It was further observed that the court cannot embark upon an enquiry as to the reliability or genuineness of the allegations made in the FIR/complaint and the defence of the accused cannot be looked at by the Court in summary proceedings under Section 482 Cr.P.C. Moreover, while referring to the case of Sunil Todi & others Vs. State of Gujarat & Another, it was added that the complaint, affidavit, and documents on record, prima facie established an offence being committed under the Negotiable Instruments Act and thereby summoning the petitioner.
The Decision of the Court:
The petition was dismissed and it was held that no further enquiry was needed in the instance case as the summoning order did not in any way betray the non-application of mind.
Case Title: Guljari Lal Vs. Kotak Mahindra Bank
Coram: Hon’ble Mrs. Justice Jasjit Singh Bedi
Case No.- CRM-M-45278-2019
Advocate for Petitioner: Mr. Ketan Antil
Advocate for Respondent: None
Read Judgement ;
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