G D CHOUDHARY Vs. VISHNUKUMAR BHAIYA

JUDGEMENT

(1.) THIS is a petition under Section 482, Cr.P.C. for quashment of the proceedings of Cr. Case No. 1529/05 pending before JMFC, Indore wherein cognizance of offence punishable under Section 420, IPC has been taken by the learned Court below vide order dated 13.12.2005.

(2.) SHORT facts of the case are that respondent No. 1 filed a complaint before the learned trial Court on 21.7.2005 alleging that respondent No. 1 is resident of 78-B Manishpuri Colony, Indore and was Managing Director of a company registered under the provisions of Companies Act known as M/s. Janak Intermediates Ltd. It was alleged that one Ashok Kumar Jain was one of the Directors of the company. In the complaint it was alleged that petitioner is carrying his business at Mumbai in the name and style of M/s G. D. Chowdhary and Company. In the complaint it was alleged that Ashok Kumar Jain was in possession of some blank cheques and some letter pads duly signed by the respondent No. 1. It was alleged that cheque Nos. 027457 and 027458 along with letter pads which were signed by the respondent No. 1 and were in possession of A. K. Jain were lost on 19.5.1995 when he was travelling on his scooter at Race Course Road. Indore. It was alleged that immediately thereafter a complaint was lodged by A. K. Jain at P.S. Tukoganj, Indore. In the complaint filed by the respondent it was alleged that on the basis of blank cheques and letter pads, forged cheques have been prepared by the petitioner and on the basis of that a complaint has been filed under Section 138 of the Negotiable Instruments Act (which shall be referred hereinafter as "the N. I. Act" for brevity) which is registered at case No. 947/S/2002 pending in the Court of XXV Metropolitan Magistrate, Small Causes Court, Mumbai.

(3.) LEARNED Counsel for petitioner submits that petitioner is a businessman and was having business at Mumbai in the name and style of M/s. G. D. Choudhary and Company which is proprietorship concerned. It is submitted that petitioner filed a private complaint under Section 138 of the N. I. Act against the respondent on 6.3.1997 wherein it was alleged that a cheque of Rs. 2 crores was given by the respondent to the petitioner which was bounced upon presentation and amount was not paid in spite of notice of demand. It is submitted that present complaint filed by the respondent is a counter attack of the complaint filed by the petitioner and pending before Metropolitan Magistrate, Mumbai. It is submitted that according to the complaint/respondent the cheques were lost on 19.9.1995 while complaint was filed by the respondent against the petitioner on 21.7.2005 i.e. after a long delay of more than 10 years. It is submitted that complaint on the face of it is a false one as is evident that before filing the complaint under Section 138 of the N. I. Act the petitioner issued a statutory notice on 18.1.1997 which was duly replied by the respondent No. 1 in which it was alleged by the respondent No. 1 that petitioner was instructed well in time not to encash the cheque. It is submitted that reply given by the respondent No. 1 is contrary to the allegation made in the complaint filed. It is submitted that on the face of it the complaint deserves to be quashed. For this contention, learned Counsel placed reliance on, a decision in the matter of Som Mittal v. Govt. of Karnataka, I (2008) CCR 308 (SC)=II (2008) SLT 234=I (2008) DLT (Crl.) 753 (SC)=(2008) 3 SCC 574, wherein it was held by the Hon. Apex Court that "when the words 'the rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of Section 482, Cr. P. C." those words merely emphasise and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482, Cr. P. C. to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression of the 'rarest of rare cases' is not used in the same sense in which it is used with reference to punishment for offences under Section 302, IPC, but to emphasise that the power under Section 482, Cr. P. C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection. It may not a therefore be correct to say that the words 'the rarest of rare cases' are appropriate only when considering death sentence for an offence under Section 302, IPC or that those words are inappropriate when referring to the ambit of the power to be exercised under Section 482, Cr. P. C.