Lal Ji vs Acche Lal

CRM-M-17476-2018 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-17476-2018 (O&M)
Lal Ji
... Petitioner
Versus
Acche Lal
... Respondent
Reserved on: 22.09.2026
Pronounced on: 31.10.2026
Uploaded on: 31.10.2026
Whether only the operative part of the judgment is pronounced ? No
Whether full judgment is pronounced ? Yes
CORAM: HON'BLE MR. JUSTICE RAMESH CHANDER DIMRI
Present: Mr. Naveen Bawa, Advocate
for the petitioner.
Ms. Arunima Saraf, Advocate for
Mr. Shrey Goel, Advocate
for the respondent.
*
RAMESH CHANDER DIMRI, J.
1. This petition under Section 482 of the Code of Criminal
Procedure, 1973 (for brevity ‘1973 Code’) seeks quashment of a complaint
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CRM-M-17476-2018 -2-
Annexure P-1 dated 05.07.2016 and a summoning order Annexure P-2
dated 08.03.2017 as suffering from material irregularities, illegalities,
perversity and abuse of process of law.
2. The petitioner alleges in the petition that the respondent filed
the complaint Annexure P-1 with allegations that the petitioner took a loan
of Rs.55,000/- from him in the month of April 2015. The petitioner agreed
to return the said loan within 05 months. On his failure to repay it within the
said period, the petitioner was liable to pay interest @15% per annum. The
petitioner failed to return the said amount within the stipulated period. On
persistent demands of the respondent, the petitioner issued a cheque
No.248786 dated 07.08.2015 for a sum of Rs.55,000/- to the respondent to
discharge his liability towards the said loan. The said cheque was drawn on
Bank of India, Ludhiana Branch, Ludhiana. On presentation, the said
cheque was dishonoured vide memo dated 08.08.2015 with remarks “Funds
Insufficient”. On such dishonour, the petitioner requested the respondent not
to take legal action against him. The petitioner assured the respondent that
he will make payment of the cheque amount. Considering his past relations
with the petitioner and to avoid litigation, the respondent did not initiate any
legal action against the petitioner. He kept on waiting for the petitioner to
make payment. By not repaying the said loan amount, the petitioner has
committed fraud upon the respondent.
3. The petitioner further says that after filing of the said
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st
complaint, he was summoned by the learned Judicial Magistrate 1 Class
under Section 420 of the Indian Penal Code, 1860 (for brevity ‘1860 Code’)
through impugned summoning order Annexure P-2 dated 08.03.2017. The
said order is illegal, non-speaking, without considering the facts, law and
circumstances of the case and also without considering the fact that no
offence under Section 420 of the 1860 Code is made out against the
petitioner from contents of the complaint.
4. The petitioner then alleges in the petition that the abovestated
cheque had been misplaced by him with his voter card and voter card of his
wife Sheela Devi on 14.07.2015. The petitioner lodged a DDR No.2 dated
15.07.2015 in that regard at Police Station Moti Nagar in District Ludhiana.
In view thereof, there was no reason for the petitioner to issue the alleged
cheque to the respondent. It, therefore, has been misused by the respondent.
Even if it is assumed that the said cheque was issued by the petitioner to the
respondent and it was dishonoured on the abovestated date with the
abovestated remarks, remedy for the respondent was to file a complaint
under Section 138 of the Negotiable Instruments Act, 1881 (for brevity
‘1881 Act’) and certainly not a complaint under Section 420 of the 1860
Code. The respondent even did not send stipulated mandatory notice to the
petitioner within the stipulated period. He only sent a notice dated
27.05.2016 to the petitioner demanding the alleged cheque amount back by
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CRM-M-17476-2018 -4-
mentioning that it has been dishonoured through the abovestated memo.
The petitioner sent a reply through his counsel to the said notice. In it, it
was specifically mentioned that the petitioner has lodged the abovestated
DDR about loss of the said cheque and therefore, there was no legal liability
against the petitioner. The complaint Annexure P-1 has been filed with
malafide and ulterior motive as the respondent did not file complaint under
Section 138 of the 1881 Act within the limitation period. No offence under
Section 420 of the 1860 Code is made out against the petitioner from
contents of the said complaint. There is no element of cheating averred in
the complaint. Even inducement has also not been alleged in it. Dispute
between the parties was a civil dispute. Non-payment of the alleged loan
amount does not amount to commission of an offence of cheating or
criminal breach of trust. As per report Veer Parkash Sharma Vs. Anil
Kumar Aggarwal and another, 2007 (3) RCR (Criminal) 960 , dishonouor
of cheque by itself will not mean that the drawer had cheated drawee.
Complaint under Section 420 of the 1860 Code filed was quashed by the
Hon’ble Supreme Court in the said matter. The complaint Annexure P-1 and
summoning order Annexure P-2 are therefore abuse and misuse of process
of law as well as Court.
5. Notice of the petition in question was issued to the respondent.
However, despite availing many opportunities, the respondent did not file
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CRM-M-17476-2018 -5-
response/reply to the petition.
6. I have heard Mr. Naveen Bawa, Advocate, learned counsel for
the petitioner and Ms. Arunima Saraf, Advocate assisted by Mr. Shrey Goel,
Advocate, learned counsel for the respondent on the petition in question.
With their assistance, I have perused record of the petition.
7. Learned counsel for the petitioner has inter alia contended that
there was a specific statutory remedy available with the respondent in
respect of dishonour of the abovestated cheque; that the respondent sent a
notice with regard to dishonour to the petitioner but never filed a complaint
under Section 138 of the 1881 Act; that since the respondent did not avail
the said statutory remedy, complaint under Section 420 of the 1860 Code
was not maintainable that too after expiry of limitation period to file a
criminal complaint under Section 138 of the 1881 Act; that therefore, the
complaint in question is abuse of process of Court and law; that even from
contents of the complaint Annexure P-1, no offence under Section 420 of
the 1860 Code is made out against the petitioner; that in view thereof,
summoning order Annexure P-2 is illegal and deserves to be set aside with
all consequential proceedings; and that the said grounds are available to the
petitioner under Section 482 of the 1973 Code to seek quashment of the said
complaint and summoning order. He has accordingly prayed for acceptance
of the petition. In support of his arguments, he has taken me to the contents
of the petition.
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CRM-M-17476-2018 -6-
8. On the other hand, learned counsel for the respondent has
contended that from contents of the complaint Annexure P-1, a prima facie
case under Section 420 of the 1860 Code was made out against the
petitioner; that in view thereof, the summoning order Annexure P-2 was
passed as per law and facts of the case in question; and that non-filing of the
complaint under Section 138 of the 1881 Act is no ground to quash the
complaint in question and its consequential proceedings. She has
accordingly prayed for dismissal of the petition. In support of her
arguments, she has relied upon report Rajesh Bajaj Vs. State NCT of Delhi
and others, (1999) 3 Supreme Court Cases 259 and a decision rendered by
a Coordinate Bench of this Court in CRM-M-31873-2018 titled as Sazid
Khan Vs. State of Haryana and another .
9. Having heard learned counsel for the petitioner and learned
counsel for the respondent but before coming to the petition in question, I
may state that in respect of power of a High Court to quash an
FIR/complaint by exercising its jurisdiction under the abovestated Section
of the 1973 Code, a three Judge Bench of the Hon’ble Supreme Court, in
the report Neeharika Infrastructure Private Limited Vs. State of
Maharashtra and others, (2021) 19 Supreme Court Cases 401, laid down
the following principles: -
“ 13. From the aforesaid decisions of this Court, right from the
decision of the Privy Council in the case of Khawaja Nazir
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CRM-M-17476-2018 -7-
Ahmad (supra) , the following principles of law emerge:
13.1. Police has the statutory right and duty under the relevant
provisions of the Code of Criminal Procedure contained in
Chapter XIV of the Code to investigate into cognizable
offences.
13.2. Courts would not thwart any investigation into the
cognizable offences.
13.3. However, in cases where no cognizable offence or offence
of any kind is disclosed in the first information report the Court
will not permit an investigation to go on.
13.4. The power of quashing should be exercised sparingly
with circumspection, in the ‘rarest of rare cases’. (The rarest of
rare cases standard in its application for quashing under
Section 482 Cr.P.C. is not to be confused with the norm which
has been formulated in the context of the death penalty, as
explained previously by this Court).
13.5. While examining an FIR/complaint, quashing of which is
sought, the court cannot embark upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made
in the FIR/complaint.
13.6. Criminal proceedings ought not to be scuttled at the
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initial stage;
13.7. Quashing of a complaint/FIR should be an exception and
a rarity than an ordinary rule.
13.8. Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State
operate in two specific spheres of activities. The inherent
power of the court is, however, recognised to secure the ends of
justice or prevent the abuse of the process by Section 482
Cr.P.C.
13.9. The functions of the judiciary and the police are
complementary, not overlapping.
13.10. Save in exceptional cases where non-interference would
result in miscarriage of justice, the Court and the judicial
process should not interfere at the stage of investigation of
offences.
13.11. Extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act according
to its whims or caprice.
13.12. The first information report is not an encyclopaedia
which must disclose all facts and details relating to the offence
reported. Therefore, when the investigation by the police is in
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progress, the court should not go into the merits of the
allegations in the FIR. Police must be permitted to complete
the investigation. It would be premature to pronounce the
conclusion based on hazy facts that the complaint/FIR does not
deserve to be investigated or that it amounts to abuse of
process of law. During or after investigation, if the
investigating officer finds that there is no substance in the
application made by the complainant, the investigating officer
may file an appropriate report/summary before the learned
Magistrate which may be considered by the learned Magistrate
in accordance with the known procedure.
13.13. The power under Section 482 Cr.P.C. is very wide, but
conferment of wide power requires the court to be cautious. It
casts an onerous and more diligent duty on the court.
13.14. However, at the same time, the court, if it thinks fit,
regard being had to the parameters of quashing and the self-
restraint imposed by law, more particularly the parameters laid
down by this Court in the cases of R.P. Kapur (supra) and
Bhajan Lal (supra), has the jurisdiction to quash the
FIR/complaint.
13.15. When a prayer for quashing the FIR is made by the
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CRM-M-17476-2018 -10-
alleged accused, the court when it exercises the power under
Section 482 Cr.P.C., only has to consider whether or not the
allegations in the FIR disclose the commission of a cognizable
offence and is not required to consider on merits whether the
allegations make out a cognizable offence or not and the court
has to permit the investigating agency/police to investigate the
allegations in the FIR.”
10. Applying principles laid down in the abovestated report to the
present case, I may state that through the summoning order Annexure P-2,
the petitioner has been summoned under Section 420 of the 1860 Code. The
said Section is therefore reproduced as under: -
“ 420. Cheating and dishonestly inducing delivery of
property . — Whoever cheats and thereby dishonestly induces
the person deceived to deliver any property to any person, or
to make, alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which is
capable of being converted into a valuable security, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to
fine.”
11. A perusal of the said Section shows that to complete an offence
provided in it, an offence of cheating should always be present. Offence of
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CRM-M-17476-2018 -11-
cheating has been defined in Section 415 of the said Code. Said Section is
therefore reproduced as under: -
“ 415. Cheating.— Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived to
deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the
person so deceived to do or omit to do anything which he
would not do or omit if he were not so deceived, and which act
or omission causes or is likely to cause damage or harm to that
person in body, mind, reputation or property, is said to
“cheat”.
Explanation.— A dishonest concealment of facts is a deception
within the meaning of this section.”
12. The said reproduced Section shows that a fraudulent or
dishonest inducement should always be present for completion of an
offence of cheating. The term ‘fraudulently’ has been defined in Section 25
of the 1860 Code whereas the term ‘dishonestly’ has been defined in
Section 24 thereof. The said Sections are therefore reproduced as under: -
“ 25. “Fraudulently”. — A person is said to do a thing
fraudulently if he does that thing with intent to defraud but not
otherwise.
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24. “Dishonestly”. — Whoever does anything with the intention
of causing wrongful gain to one person or wrongful loss to
another person, is said to do that thing “dishonestly”.”
13. Section 415 of the said Code also prescribes that an act of
deceit should be present for constituting the offence defined in it. If the said
provisions of the said Code are applied to the case in question, a perusal of
the complaint Annexure P-1 shows that in para No.1 thereof, it has simply
been stated that the petitioner took a loan of Rs.55,000/- from the
respondent in April 2015 with an agreement to return the said loan amount
within five months failing which the petitioner was liable to pay interest
@15% per annum on the said loan amount but the petitioner failed to
honour his words and did not return the amount within the said period.
Although in para No.2 of the complaint Annexure P-1, it has also been
mentioned that intentions of the petitioner were dishonest and fraudulent
from the very inception, yet, necessary facts to infer such intentions are not
contained in the complaint. There is no averment even that the petitioner
induced the respondent to advance the abovestated loan to him. Intention
has always to be determined at the time of inception of the crime set forth.
Rather, contents of the complaint Annexure P-1 themselves say that the
petitioner issued the abovestated cheque when he could not return the
abovementioned amount. Such contents therefore show that the petitioner
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CRM-M-17476-2018 -13-
did not have the intention alleged in the complaint at the time of taking the
abovestated loan. In the absence of necessary facts to infer such intentions,
it has to be concluded that the complaint Annexure P-1 does not fulfill
requirements contained in the abovestated Sections to constitute an offence
under Section 420 of the 1860 Code. Non-return of the abovestated amount,
even if actuated with a subsequent malice, will not change the matter in
favour of the respondent.
14. So far as dishonour of the cheque set forth to have been issued
by the petitioner is concerned, it is suffice to state that the respondent was
always at liberty to exercise all his rights in respect of such dishonour in
accordance with law. If the respondent did not exercise his rights, he cannot
at all blame the petitioner in that regard. Non-payment of the loan amount
consequent to the alleged assurance without there being an element of
deceit and intention of not repaying it at the time of taking the loan can also
not be a determining factor as to whether an offence under Section 420 of
the 1860 Code is made out against the petitioner or not. The above
discussion therefore shows that the complaint Annexure P-1 does not make
out an offence under Section 420 of the said Code against the petitioner but
despite that he was summoned under the said Section by the summoning
order Annexure P-2. Summoning order Anexure P-2 does not record
anything more in respect of allegations made by the respondent against the
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CRM-M-17476-2018 -14-
petitioner. Rather it reiterates its contents. Once it comes out that the
complaint Annexure P-1 did not make out an offence under Section 420 of
the 1860 Code against the petitioner, the summoning order based on it
cannot be legally sustained. Argument raised on behalf of the respondent
that complaint Annexure P-1 makes out a prima facie case against the
petitioner, therefore, cannot be accepted. For such non-acceptance,
summoning order Annexure P-2 can also not be legally sustained. Rajesh
Bajaj ’s report ( supra ) also does not appear to be applicable to the
facts/circumstances of the present matter. In the said report, it was observed
that a complaint cannot be quashed if it makes out a prima facie case for
investigation for the reason that one or two ingredients of the offence have
not been stated in detail. However, in the present case, the necessary
ingredients for constituting the offence under Section 420 of the 1860 Code
are absent from the complaint. The said report, therefore, appears to be
distinguishable on facts and questions of law determined therein. Sazid
Khan ’s decision ( supra ) also appears to have been rendered on its own
facts/circumstances.
15. There is one more angle of the matter. In the complaint
Annexure P-1 itself, the respondent says that the petitioner issued
abovestated cheque on 07.08.2015 to him in order to return the loan amount
but when he presented the said cheque before the concerned bank, it was
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dishonoured. At the same time, a perusal of notice Annexure P-4 shows that
after dishonour of the said cheque on 08.08.2015, the respondent did not
issue any notice required by law to the petitioner to make payment of the
dishonoured cheque and on failure to face prosecution under Section 138 of
the 1881 Act. Issuance of a cheque and dishonour thereof with
consequences of the dishonour have been dealt with by the said Section.
The respondent had a right to avail remedy provided under the said Section.
However, he did not do so and also never filed a complaint in respect of the
said dishonour. It was only on 05.07.2016 when the limitation to issue a
notice and to file a complaint in terms of the said Section had elapsed that
the petitioner filed the complaint Annexure P-1 before the learned
Magistrate. Therefore, by omitting to avail the statutory remedies under the
said Section, the petitioner, so far as the abovestated cheque is concerned,
deprived himself of right granted to him to institute litigation for the
abovestated dishounour. In that view of the matter, the respondent could not
have filed the complaint in question to secure prosecution and conviction of
the petitioner under Section 420 of the 1860 Code since limitation to secure
the same under Section 138 of the 1881 Act stood lapsed. Therefore, action
of the respondent in filing the complaint Annexure P-1, in the
facts/circumstances of the case in question, also appears to be an abuse of
process of law and Court. Such circumstances also turn out to be one of the
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grounds for quashment of the complaint Annexure P-1 and summoning
order Annexure P-2 to prevent abuse of process of law and Court as well as
to secure ends of justice. Argument raised on behalf of the respondent
contrary to the abovestated observations, therefore, cannot be accepted.
16. For what has been stated above, I am of the considered opinion
that the impugned complaint Annexure P-1 and summoning order Annexure
P-2 with consequential proceedings thereof are liable to be quashed. The
same, with such proceedings, are accordingly quashed.
17. Present petition is allowed in the abovestated terms. Interim
application/s, if any, stand/s disposed off.
[ RAMESH CHANDER DIMRI ]
31.10.2026 JUDGE
vishnu
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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