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Judgment
The case at hand presents one of the starkest example of misuse of human relationship one is likely to come across in a life time. The petitioner
herein is a 76 years old pensioner retired from Railways, who has been dragged into a criminal litigation by none other than the respondent No.2, his
own son, who has apparently joined hands with his wife to implicate the petitioner in a criminal case under Section 138 of the Negotiable Instruments
Act.
Facts in brief are that the petitioner herein, retired from service of Railways in the year 2000 and is residing alongwith his wife in his self-acquired
house located at 9, Maan Mahal, Sher Vilas, Police Station Ratanada, Jodhpur. The respondent No.2 Pankaj Agrawal is the only son of the
petitioner and the complainant of the case at hand. The petitioner claims to have discharged all his parental duties towards the respondent No.2 and
married him to Smt. Rama on 30.01.2001. It is asserted that right after the marriage of the respondent No.2 with Smt. Rama, his attitude towards
his parents changed and the husband and wife started misbehaving with them. The petitioner claims that he and his wife tried to tolerate and put up
with this ill behaviour considering the fact that the respondent No.2 is their only offspring. The respondent No.2 was in service of NIIT, Delhi. Soon
after his marriage, he shifted to Delhi with his wife. It is asserted by the petitioner in this petition that whenever the respondent No.2 came down to
Jodhpur with his wife, they used to misbehave and quarrel with the parents. Finally, the petitioner and his wife Asha were so disggusted with this
misbehaviour that they were compelled to issue a public declaration/notice in the Rajasthan Patrika newspaper, Jodhpur Edition dated 17.03.2006
disowning all relations with Pankaj and Rama. Sometime after publication of this notice, the respondent No.2 and his wife approached the
petitioners and expressed their unconditional apology in an attempt to patch up the relationship. The petitioner was lured into the trap laid by the
respondent, which was nothing but a gimmick and a drama. The petitioner came to know of the vision ailment suffered by the respondent No.2 and
thus, out of love, affection and sympathy for his only son, he condoned the misdeeds of Pankaj and gave him significant financial aid to the tune of
Rs.44,79,494/- through banking transactions. It is claimed that the petitioner has paid a sum of nearly Rs.45 lacs to the respondent No.2 since 2006
so as to provide him financial assistance for meeting his medical and logistic needs. The petitioner claims that in the year 2013-2014, the respondent
No.2 requested the petitioner to provide him financial aid to purchase a flat in a scheme of residential flats floated by the Delhi Development Authority
expressing inability to buy the same on his own. Â Upon this, the petitioner sent three signed blank cheques bearing Nos.079760, 079761 and 079762
from his SBI savings account to the respondent No.2 through Registered AD post. After three months of receiving the cheques, the respondent No.2
apprised the petitioner that he could not be selected in the lottery draw held by the DDA and the three cheques sent by the petitioner had been
cancelled. The petitioner bonafide believed this statement and did not take any further action in this behalf. Even thereafter, the petitioner claims to
have continued providing financial assistance to the respondent No.2. However, to his utter shock and surprise, the petitioner received mobile
messages from his bank, i.e. SBI, in the month of August 2016 notifying him that aforementioned three cheques had been presented and
dishonoured. Cheque No.079760 was filled in for a sum of Rs.3 crores, the cheque No.079761 was filled in for a sum of Rs.10 lacs and the third
cheque No.079762 was filled in for a sum of Rs.4 crores and were presented for encashment. The petitioner made enquiry from the bank and
came to know that the cheque of 3 crores was presented by the respondent No.2 Pankaj herein, whereas the other two cheques were filled in and
presented by his wife, namely, Smt. Rama Agrawal. The petitioner and his wife receive sums of Rs.30,000/- and Rs.13,000/- respectively as
monthly pension. The petitioner further claims that he got a sum of Rs.60 to 70 lacs at the time of his retirement, of which major part was spent in
providing financial aid to the respondent No.2. Immediately on coming to know about misuse of these three cheques, the petitioner lodged an FIR
bearing No.259/2018 at Police Station Ratanada through a complaint submitted in the court of the Chief Metropolitan Magistrate, Jodhpur. The
petitioner and his wife were manhandled and beaten by the respondent No.2 and his wife, on which the petitioner filed a complaint against them at the
Police Station Ratanada on 04.08.2016 under Sections 107 and 151 CrPC on 04.08.2016 and the police bound them down on the very same day.Â
The anticipatory bail application filed by the respondent No.2 and his wife Smt. Rama in connection with FIR No.259/2016 lodged by the petitioner has
reportedly been dismissed by the Sessions Judge, Jodhpur. Smt. Rama filed a complaint under the provisions of the Protection of Women from the
Domestic Violence Act, 2005 against the petitioner herein alleging inter alia that she was ousted from the matrimonial premises on 15.07.2016 and her
stridhan articles had misappropriated. The said application filed by Smt. Rama was rejected by the Metropolitan Magistrate No.7, Jodhpur on
07.10.2016 and the appeal filed against the said order too was dismissed by the Additional Sessions Judge (Women Atrocities Cases), Jodhpur on
13.10.2017. Smt. Rama also filed an FIR No.138/2016 against the petitioner and his wife for the offences under Section 498-A, 406 and 323 IPC at
the Police Station Mahila Thana, Jodhpur East, in which the police has given a negative final report after investigation. While submitting the negative
final report, the Investigating Officer collected positive evidence to the effect that the petitioner had provided financial aid to the tune of Rs.40 to 42
lacs to his son Shri Pankaj and that the allegation of demand of dowry was totally false and fabricated. It is asserted in the petition that the
respondent No.2 and his wife conspired together and misused three blank signed cheques sent to them by the petitioner in the year 2014 for
purchasing a flat.  The flat was never purchased and instead, the cheques were filled in fraudulently by Pankaj and hise wife for satiating their
greed and to extort money from the petitioner. Unrealistic amounts to the tune of Rs.3 crores, 10 lacs and 4 crores were filled in the cheques and
the same were presented for encashment in the bank. The petitioner was in no manner liable nor was he capable to pay these kinds of exorbitant
sums of money, which the respondent No.2 and his wife intentionally and fraudulently filled in the dishonoured cheques. It is further mentioned that
the entire endeavour of the respondent, while presenting the cheques was to harass the petitioner and to extort money from him. The petitioner has
further alleged that foundation of the legally enforceable debt, which has been propounded in the complaint, is based on an aspersion that the petitioner
and his wife executed a receipt, detailing therein the numbers of the cheques with the amounts and provided it to respondent No.2 Pankaj Agrawal.Â
The petitioner has specifically denied having executed any such receipt. It is further mentioned at para No.19 of the miscellaneous petition that the
cheques which were provided to the petitioner by the bank bear a printed instruction that the same would be valid only if presented for a sum of Rs.10
lacs or under. The petitioner has further raised an objection regarding nonservice of the statutory notice under Section 138 of the Negotiable
Instruments Act in his quest for seeking quashing of the proceedings of the impugned complaint.Â
Mr. Rajat Dave, learned counsel representing the petitioner vehemently urged that ex facie the respondent acted in a malafide and fraudulent manner
while presenting the disputed cheque after deceitfully filling in a fictitious and unrealistic sum of Rs. 3 crores and the other two cheques, which were
filled in and presented by his wife for sums of Rs.10 lacs and Rs.4 crores respectively. He urges that the ground for receiving the cheques and the
foundation of the so-called legally enforceable debt as set out in the complaint, which reads as below, is totally fictitious, created and conjectural :-
^^2- ;g gS fd vizkFkhZ@eqfYte izseeksgu xksfoyk us izkFkhZ@ifjoknh iadt vxzoky dks vyx ls O;olkf;d ifjlj o edku ysus] vkthou bykt] Hkj.k
iks’k.k vkSj iadt vxzoky } kjk vizkFkhZ@eqfYte ds bl jgoklh; edku ls e; ifjokj ds pSd dk uksfVl nsrs le; rd jg jgk Fkk] esa viuh dekbZ ls yxk;s x;s 5
yk[k :i;s e; C;kt vnk djus ds mRrjnkf;Ro ls eqDr gksus ds fy, vizkFkhZ@eqfYte izseeksgu xksfoyk us izkFkhZ@ifjoknh iadt vxzoky dks rhu djksM+
:i;s nsus dk fu'p; fd;kA ftlds rgr vizkFkhZ@eqfYte izseeksgu xksfoyk us vius [kkrs dk ,d pSd la[;k 079760 :i;s rhu djksM+ dk vius [kkrs Hkkjrh; LVsV
cSad ,;jQkslZ LVs'ku]Â tks/kiqj dk fnukad 5@8@2016 dk izkFkhZ@ifjoknh iadt vxzoky ds uke ls vius gLrk{kj djds fn;kA vizkFkhZ@eqfYte
izseeksgu xksfoyk us izkFkhZ@ifjoknh iadt vxzoky dks pSd nsrs le; vk'oLr fd;k Fkk fd mDr pSd tc Hkh vki vius cSad [kkrs esa fldjus ds fy, Mkyksxs
rks ;g pSd ejs s [kkrs ;kfu izseeksgu xksfoyk ds [kkrs ls fldj dj izkFkhZ@ifjoknh iadt vxzoky ds cSad [kkrs esa vk tk;saxsA vizkFkhZ@eqfYte us mlh
jkst izkFkhZ@ifjoknh dh ifRu jek vxzoky dks Hkh izkFkhZ ifjoknh iadt vxzoky ds lkeus pSd fn;s] tks izkFkhZ@ifjoknh dh ifRu jek vxzoky o cPpksa ds
fy;s fn;s FksA vizkFkhZ@eqfYte izseeksgu xksfoyk vkSj mldh ifRu Jhefr vkâ€kk xksfoyk us izkFkhZ@ifjoknh iadt vxzoky dh ifRu jek vxzoky ds
lkeus dgk fd ;s pSd yks vkSj ;g jkthukek tks odhy lkgc ls fy[kkdj yk;s gS] bl ij vki nksuksa gLrk{kj dj nks vkSj rqjUr ;g edku [kkyh djks vkSj pys tkvks
rc izkFkhZ@ifjoknh iadt vxzoky vkSj mldh ifRu jek vxzoky us vizkFkhZ@eqfYte izseeksgu xksfoyk dks dgk fd mijksDr pSd fldjus ds i'pkr gh ge bl
jkthukes ij gLrk{kj djsaxs vkSj ;g ?kj [kkyh djds ;gka ls pys tk;saxsA rc vizkFkhZ@eqfYte izseeksgu xksfoyk us izkFkhZ@ifjoknh iadt vxzoky dks
iw.kZ:i ls vk'oLr fd;k fd eSaus vkidks tks pSd fn;k mlesa of.kZr fnukad vFkok mldh fu/kkZfjr vof/k ds Hkhrj Hkhrj tc dHkh vius [kkrs esa fldjus ds fy,
Mkysaxs rks ejs s [kkrs ls ;kfu vizkFkhZ@eqfYte izseeksgu xksfoyk ds cSad [kkrs ls izkFkhZ@ifjoknh iadt vxzoky ds cSad [kkrs esa vk tkosxkA
mijksDr rhuksa pSd fnukad 5@8@2016 dks nsus ds i'pkr~ vizkFkhZ@eqfYte izse eksgu xksfoyk us jlhn ekaxh rc izkFkhZ@ifjoknh iadt vxzoky dh
ifRu Jherh jek vxzoky us fnukad 5@8@2016 dks ,d jlhn cukdj nhA ml jlhn ij jek vxzoky] iadt vxzoky] izseeksgu xksfoyk vkSj Jherh vk'kk xksfoyk us
gLrk{kj fd;sA pwafd mDr jlhn dh QksVksizfr ?kj ds ckgj tkdj djokuk lEHko ugha Fkk blfy, ml jlhn dh ,d QksVks eksckby ds tfj;s yh xbZA jlhn dh
QksVksizfr bl ifjokn ds lkFk layXu gSA**
He urges that the house in question is exclusively owned by the petitioner himself and was built by him with his own sweat and blood. The
respondent Pankaj and his wife have no stake or claim thereupon. He urged that it is a totally cooked up theory that the petitioner agreed to give
such a huge sum of money to the respondent for getting the same house vacated. He further urges that the allegation set out in the complaint that
the disputed cheque was given to the complainant for providing him life long maintenance; for purchasing commercial and residential premises etc. and
for repaying the amount of Rs.5 lacs allegedly invested by him in the petitioner’s house is totally a cooked up figment of imagination. The
petitioner, being a retired pensioner, could himself expect and lawfully claim maintenance from his son and not vice versa. He urges that the
petitioner had disowned Pankaj and his wife way back in the year 2006 and thus, there was no occasion for Pankaj to have invested money in the
petitioner’s house. Relying on the Supreme Court decision in the case of Lalit Kumar Sharma & Anr. Vs. State of Uttar Pradesh & Anr.
[(2008) 5 SCC 638], Mr. Dave urged that a cheque issued in furtherance of a compromise, if dishonoured, cannot be considered as creating a legally
enforceable debt so as to entail proceedings under Section 138 of the Negotiable Instruments Act. He has placed on record, copy of the order dated
13.10.2017 passed by the appellate court rejecting the appeal filed by Smt. Rama, wife of Pankaj Agrawal under the Domestic Violence Act, wherein
the appellate court made the following observations :-
^^13- bl izdkj izFke n`""V;k ,slk izrhr gksrk gS fd izR;FkhZ izse eksgu tks fd vihykFkhZ Jherh jek] mlds ifr iadt o mlds cPpksa dks lgk;rk nsus ds fy, gj
lEHko dksfâ€kâ€k dh gS vkSj tks nLrkost izLrqr fd;s x;s gSa mlesa cSad VªkatsDâ€ku ls jde fn;s tkus rFkk 44]79]494@& :i;s vc rd vihykFkhZ jek o
mlds ifr iadt dks fn;s tk pqds gS vkSj ,slh fLFkfr esa ;g ugha dgk tk ldrk fd izR;FkhZ izse eksgu us vius nkf;Roksa dk fuoZgu ugha fd;k tSlk vihykFkhZ
Jherh jek dFku dj jgh gSA gekjs le{k iqfyl vf/kdkjh ds dFku dh QksVks izfr gS ftlesa ;g tkfgj vk;k gS fd og ekSds ij x;k rks bl izdj.k esa of.kZr rF;ksa
ds foijhr vius vihykFkhZ Jherh jek o mlds ifr iadt dks yM+kbZ >xM+k djrs gq, o /kedkrs gq, ik;k bl ij nksuksa dks /kkjk&107 o 151 n.M izfØ;k lafgrk
esa ikcUn fd;kA izR;FkhZ izse eksgu dk ;g Hkh vkjksi gS fd mlus vius iq= iadt dks xzsVj uks;Mk fodkl izkf/kdj.k esa edku vkaoVu gsrq jftLVªsâ€ku
djokus ds fy, rhu [kkyh pSd fn;s Fks ftls mlds iq= iadt us Øeâ€k% pkj djksM+] rhu djksM+ o nl yk[k dqy lkr djksM+ nl yk[k :i;s ds pSd vuknfjr djok
fn;s vkSj bldh ,d izFke lwpuk fjiksVZ Hkh vuqla/kkuk/khu gSA**
^^16- gekjh fouez jk; esa ?kjsyw fagalk ls efgykvksa dk lja{k.k vf/kfu;e ds rgr nh tkus okyh fjyhQ dks izHkkfor ugha D;ksafd bl vf/kfu;e esa dsoy ;g
ns[kk tkuk gS fd D;k ihfM+r efgyk ftlds } kjk ifjokn fd;k x;k gS] ds }kjk U;k;ky; ds i;kZIr :i ls varfje vuqrks’k dh okaNk djrs gq, U;k;ky; ds le{k
izFke n`""V;k ;g fl) dj fn;k gS fd mlds lkFk ?kjsyw fgalk gks jgh gS] bl izdj.k esa vihykFkhZ Jherh jek ,slk djus esa vlQy jgh gSA ;gka ij izR;FkhZ izse
eksgu us u dsoy ;g lkfcr fd;k gS fd og vihykFkhZ Jherh jek vkSj mlds ifjokj dks vkfFkZd o ekSfnzd :i ls lgk;rk nsrk vk;k gS cfYd mlds ckotwn Hkh
vihykFkhZ Jherh jek o mlds ifr ds }kjk mudks izrkfM+r fd;k x;k vkSj blds fy, iqfyl dks gLr{ksi djuk iM+kA**
He urged that the appellate court, on the basis of substantive evidence expressly concluded that the petitioner had paid a huge sum of Rs.44,79,494/-
to Pankaj, Smt. Rama and their children by way of financial aid from time to time. He, thus, urges that the impugned complaint is nothing short of a
gross abuse of process of court and hence, the proceedings thereof deserve to be quashed and struck down.
Per contra, the respondent Mr. Pankaj Agrawal, appearing in person, vehemently urged that he and his wife were illegally ousted by the petitioner and
his wife from the shared residential household, wherein, he had invested a huge sum of money. Numerous litigations ensued between the parties.Â
For settling these litigations and to provide maintenance and means of sustenance to him (Pankaj), the petitioner handed over the disputed cheques
under a receipt, wherein the cheque numbers and the amounts are expressly mentioned. He relied upon the Judgments in the cases of Sampelly
Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Limited [2016 (2) Bankmann 131 (SC)], Surendra Thakral Vs. State & Anr.
[2014 (2) NIJ 167 (Raj.)] and Bishan Dayal Vs. Dinesh Kumar Singal [2007 (2) NIJ 527 (Del)] and urged that the facts available on record clearly
establish that the cheque in question was issued voluntarily by the petitioner under his own signatures and was dishonoured upon presentation. Thus,
as per the complainant, this court should not delve into disputed questions of facts so as to quash the complaint at the inception. He contended that it
would be premature for the court to make an adjudication about the existence of a legally enforceable debt. He, thus, implored the court to dismiss
the miscellaneous petition and direct the trial court to proceed with the complaint expeditiously.
I have given my thoughtful consideration to the arguments advanced and have perused the impugned complaint; the documents placed on record and
the law cited before me. It is not in dispute that the petitioner and the respondent being father and son are engaged in bitter family disputes since
last numerous years. The petitioner has taken a specific plea that he disowned the respondent No.2 through a notice published in the newspaper
way back in the year 2006. However falling for respondent No.2’s and his wife’s apologetic pretense and looking to the financial difficulty
being faced by them, the petitioner conceded to resumption of the family affairs. As per the findings recorded by the appellate court while deciding
the appeal preferred by Smt. Rama vide the judgment dated 13.10.2017, reproduced hereinabove, manifestly, the petitioner paid a huge sum of
Rs.44,79,494/- to the respondent No.1 Pankaj and his wife Smt. Rama thorugh bank transactions. The petitioner claims to have sent three signed blank
cheques including the present one to the respondent for his feigned intention of buying a flat under a scheme floated by the DDA. Copy of disputed
cheque No. 079760 is available on record. The same bears a clear printed instruction of the issuing bank that if would be valid only if issued for a
sum of Rs.10 lacs or below. However, the questioned cheque was presented by the respondent after filling the amount of Rs.3 crores therein.Â
The legally enforceable debt as portrayed in the captioned portion of the complaint (supra) is projected towards providing health care and to enable the
respondent to buy commercial and residential properties and towards repayment of investment of Rs.5 lacs allegedly made by the respondent in the
petitioner’s house. Ex facie, the liability which the respondent has claimed as a legally enforceable against the petitioner cannot be quantified.Â
By no stretch of imagination, can the court be satisfied that the petitioner, being a retired Railwayman aged 76 years, would agree to part with a huge
sum of Rs.7 crores 10 lacs (including the two other cheques referred to supra) so as to provide means of sustenance to his own son. The
proposition as portrayed in the complaint is contrary to all cannons of human relationship and conduct. Furthermore, the amount claimed by the
respondent under the so-called agreement is dependent on the consequential settlement of various cases instituted inter se between the parties, but the
respondent has nowhere mentioned in the complaint that the cases lodged by him and his wife against his parents (i.e. the petitioner and his wife)
stood withdrawn as on the date of filing of the complaint. Be that as it may, the disputed cheque bears a specific printed instruction that it would be
treated valid only if issued for a sum of Rs.10 lacs and under. Therefore, the cheque in question which was filled in and presented for a sum of Rs.3
crores cannot be treated to be a valid negotiable instrument/cheque as defined under the Negotiable Instruments Act so as to make the account holder
liable to honour the same. It is clearly a case, where an unworthy son has, by hook or crook, entangled his old aged father in a totally frivolous and
cooked up litigation for satiating his own greed. The judgment relied upon by the petitioner’s counsel in the case of Lalit Kumar Sharma (supra)
applies on all fours to the facts of the present case on the aspect of legally enforceable debt. On the other hand, the judgments relied upon by the
respondent during the course of his arguments have no application to the present case and are totally distinguishable on facts. In the case of
Sampelly Satyanarayana Rao (supra), on which the respondent banks upon, the Hon’ble Supreme Court has clearly laid down that liability under
Section 138 of the Negotiable Instruments Act would apply only if on the date of issuance of the cheque, liability or debt exists or the amount has
become legally recoverable from the account holder. By no stretch of imagination, can the court be satisfied that the amounts claimed by the
complainant from the petitioner against the disputed cheque are legally recoverable.
In view of the discussion made hereinabove, this court, while expressing its anguish on the plight being faced by the petitioner and, abhorrence towards
the greedy and vengeful approach of the complainant (respondent herein) is convinced that it is the fittest case warranting exercise of inherent powers
conferred upon the High Court by Section 482 CrPC so as to quash the proceedings of the impugned complaint in entirety. Hence, the
miscellaneous petition deserves to be and is hereby allowed. Consequently, all further proceedings of the complaint Case No.136/2016 pending before
the Special Metropolitan Magistrate (Negotiable Instruments Act) No.3, Jodhpur Metropolitan are hereby quashed.