Sushil Kumar Sachdeva vs State of Punjab and another

Sabina, J.—Petitioner has filed this petition u/s 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) for quashing of the FIR No. 75 dated 20.2.2003 u/s 420, 506 of the Indian Penal Code (''IPC for short), registered at Police Station, Kotwali Bathinda, District Bathinda (Annexure P-1) including the order dated 26.5.2005 (Annexure P-5) and all the subsequent proceedings arising therefrom. Learned counsel for the petitioner has submitted that petitioner was an employee of Sarvotam Credit and Finance Limited Company. Petitioner had resigned from the said company on 31.3.2001. Resignation submitted by the petitioner was duly accepted by the company. Thereafter, the cheque in question was issued by the Chairman of the company who is already facing the trial on 15.7.2002. Thus, petitioner had no concern with the issuance of the cheque in question as he had already left the company when the cheque was issued by the company in favour of the complainant. Petitioner was found innocent during investigation.

Learned State counsel, on the other hand, has opposed the petition.

In the present case, FIR in question has been registered at the instance of Gurjeet Kaur-complainant. The case of the complainant, in brief, is that she had deposited in all? 60,000/- with the petitioner who was the manager of the company. However, the amount in question was not returned to the complainant. Thereafter, a cheque was given to the complainant by the petitioner and when the said cheque was deposited in the bank, the same was dishonoured on the ground that signatures of the manager on the cheque did not match with the signatures available with the bank authorities. Petitioner was found innocent during investigation and was placed in column No. 2 at the time of presentation of challan against accused Gurdhain Singh. The Magistrate vide the impugned order has ordered the summoning of the petitioner by invoking the provisions of Section 190 Cr.P.C.

Annexure P-4 is the statement of Gurbax Singh Multani recorded during investigation wherein he has submitted that petitioner had resigned from the company on 31.3.2001. The cheque in question Annexure P-2 has been issued on 15.7.2002. A perusal of Annexure P-2 reveals that it has been issued by the Chairman of Sarvotam Credits and Finance Limited. A perusal of Annexure P-3 reveals that the cheque in question was dishonoured as it did not bear the second signature as required and further on account of insufficient funds. In the present case, although, allegations have been levelled against the petitioner in the FIR that he had handed over the cheque to the complainant but the cheque has not been signed by the petitioner. In fact, cheque purports to bear the signatures of the Chairman, Sarvotam Credits and Finance Limited. As per the memo issued by the bank Annexure P-3, the cheque had been dishonoured as it was not signed by the Manager and further, because of insufficient funds. The cheque was not dishounoured because the signatures of the Chairman did not match with the specimen signatures available with the bank. Further, it had transpired during investigation that the petitioner had already resigned from the company with effect from 31.3.2001 whereas the cheque in question was issued much later on 15.7.2002.

Section 190 Cr.P.C. reads as under:-

Cognizance of offences by Magistrates-

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

In the present case, there was no occasion for the Magistrate to exercise its power u/s 190 Cr.P.C. as at that stage, there was no material on record to proceed against the petitioner. Petitioner had been found innocent during investigation as the cheque in question was not signed by the petitioner and further, petitioner had already resigned from the company on the date of issuance of the cheque. Accordingly this petition is allowed. The impugned order dated 26.5.2005 (Annexure P-5) is set aside. However, in case during trial some material/evidence comes on record showing the involvement of the petitioner in the crime, then prosecution would be at liberty to move an application u/s 319 Cr.P.C. for summoning the petitioner as additional accused.