Himachal Pradesh High Court
Sumit Juneja vs Of on 12 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 271 of 2023 Reserved on: 13.12.2023 .
Date of Decision: 12th January, 2024
Sumit Juneja ...Petitioner
Versus
of
State of H.P. & others ...Respondents
Coram
rt
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. Gangan Oberoi, Advocate.
For the Respondents : Ms. Avni Kochhar, Deputy Advocate General, for respondent No.1/State : Respondents No.2 and 3 proceeded ex parte vide orders dated 08.05.2023 and 01.06.2023, respectively.
Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing the complaint titled M/S PDC Healthcare versus M/S Saintlife Medicine Pvt.
Ltd. & another bearing complaint No. NIA/49/2018, pending before the learned Judicial Magistrate First Class (JMFC), Paonta Sahib, District 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 2Sirmour, HP and all consequent proceedings arising therefrom and summoning order dated 03.02.2018.
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2. Briefly stated, the respondent No.2 (complainant before the learned Trial Court) filed a complaint against the petitioner (accused No. 2 before the learned Trial Court) for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act.
of (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). It was rt asserted that the complainant firm manufactures pharma products.
Anil Kumar is the Managing Partner and he is looking after the affairs of the firm. Accused No.1 is a Private Limited Company and accused No.2, is the Managing Director /authorized signatory of the Company. He is looking after the affairs and managing the daily affairs of the Company.
The accused were regular customers of the complainant and they used to purchase medicines from the complainant on credit. A sum of ₹1,06,03,924/- (One Crore Six Lakhs Three Thousand Nine Hundred Twenty-Four) was due against the accused on 09.09.2017. purchased the medicines worth ₹8,72,589/-(Rupees Eight Lakhs Seventy Two Thousand Five Hundred Eight Nine) through bill bearing No. 00195.
The accused No.2 issued a post-dated cheque for a sum of ₹8,72,589/-
for discharging his liability. The accused No.2 also issued for another ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 3 cheque sum of ₹5,90,000/- to discharge the legal liability. The accused stopped business with the complainant. An amount of ₹ 1,13,46, 371/-
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(Rupees One Crore, Thirteen Lakhs, Forty Six Thousand and Three Hundred Seventy One) was due against the accused upto October, 2017.
The complainant deposited the cheques before his bank from where they were sent to the bank of accused No.1; however, the bank of of accused No.1 dishonoured the cheque with an endorsement "Payment Stopped by the Drawer". The complainant told the accused No.2 about rt the dishonour of the cheque who told the complainant to present the cheques again and assured that they would be honoured on their presentation. The complainant again submitted the cheques to his bank from where they were sent to the bank of the accused. The cheques were again dishonoured with the endorsement "Payment Stopped by the Drawer". The complainant served a legal notice upon the accused asking them to make the payment. The notice was duly served upon the accused but they failed to pay the amount. Hence, the complaint was filed against the accused for taking action as per the law.
3. The learned Trial Court found sufficient reasons to summon the accused vide order dated 03.02.2018. The accused being aggrieved from the summoning order has approached this Court for quashing the order and the complaint pending before the learned Trial Court. It was ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 4 asserted that the goods supplied by the complainant were of inferior quality. A large quantity of medicines failed the test and these were .
returned to the complainant. GST of ₹ 13,35,254.81 was reversed and a debit note was issued to the complainant which was acknowledged by him. The accused expressed serious concern to the complainant about the poor quality of life-saving medicines. A meeting was called and all of invoices with the complainant were settled by accused No.2. An amount of ₹ 13,35,254.81/- (Rupees Thirteen Lakhs, Thirty-Five Thousand Two rt Hundred Fifty-Four and eighty-one paise) was found due after settlement of the amount. It was agreed that the complainant would issue a No Objection Certificate on the payment of the amount. The accused paid a sum of ₹ 15,00,000/- (Rupees Fifteen Lakhs), which was duly acknowledged by the complainant. The accused resigned from the post of Managing Director on 25.10.2021 and Sunil Nandwani was appointed as Managing Director of the Company. Again a meeting was held and it was agreed that the accused No.2 would act as a guarantor for the complainant towards SS Printpack, one of the creditors, for an amount of ₹33,00,000/-. It was further agreed that an amount of ₹12,00,000/- out of ₹ 13,35,254.81 GST Reverse Charges be set off against the outstanding amount. Accused No. 2 paid an amount of ₹33,00,000/- to the creditor of the complainant vide transaction dated ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 5 01.09.2020 and SS Printpack confirmed the payment of the amount after adjusting ₹12,00,000/- Nothing is due towards accused No.2. A .
certificate was also issued by Chartered Accountant Sumit Sabharwal & Associates dated 07.01.2023 to this effect. The complaint was wrongly filed. No preliminary evidence was led to establish the existence of legally enforceable debt. The summoning order was passed on of 03.02.2018 without conducting any inquiry under Section 202 of Cr.P.C.
The complainant failed to withdraw the legal proceedings despite the agreement.
rt No inquiry was conducted by examining the witnesses.
Therefore, it was prayed that the present petition be allowed and summoning order and the complaint pending before the learned Trial Court be set aside.
4. I have heard Mr Gagan Oberoi, learned Counsel for the petitioner and Ms Avni Kochhar, Deputy Advocate General, for respondent No.1/State
5. Mr. Gagan Oberoi, learned Counsel for the petitioner submitted that the learned Trial Court erred in summoning the accused as no inquiry contemplated under Section 202 of Cr.P.C. was conducted, which is mandatory. There is no legally enforceable debt or liability.
The complainant failed to withdraw the complaint despite the ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 6 compromise. Therefore, he prayed that the present petition be allowed and the summoning order dated 03.02.2018 be set aside. He has relied .
upon the judgments of Vijay Dhanuka and others Vs. Najima Mamtaj and others, 2014 (14) SCC 638, Birla Corporation Limited vs. Adventz Investments and Holding Limited 2019 (16) SCC 610, Abhijeet Pawar vs Hemand Madkhukar Nimbalkar and another 2017 (3) SCC 528, Neeta Sinha of vs. P.S. Raj Steels Private Ltd., Cri. Misc No. M23507, dated 10.03.2010, K.S. Joseph vs Philips Carbon Black Ltd. and another 2016 11 SCC 105 and In Re:
rt Expeditious Trial of cases under Section 138 of N.I. Act 1881 Suo Motu Writ Petition (Crl.) No. 2 of 2020, decided 16.04.2021 in support of his submission.
6. Ms. Avni Kochhar, learned Deputy Advocate General for respondent No.1 submitted that the dispute between the parties is private and the State has nothing to submit in the present case.
7. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
8. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765 : (2023) 7 SCC 711 wherein it was observed at page 716:-
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 717. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time.
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Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly. In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], this Court laid down the following guiding principles : (SCC pp. 482- of 84, para 27) "27. ...27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the rt more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 8 for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the .
exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
of 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
rt 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise to and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 9 evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil .
claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his of acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule rt of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge sheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to an abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 10 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one .
or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
9. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-
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26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order.
In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:
rt"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 11 police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer of without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are rtso absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 12 not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."(emphasis supplied)
10. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC .
379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence. It was observed:
10. From the impugned common judgment and order passed by of the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court rt on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going into detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".
11. One other reason pointed out by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 13 High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be .
considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.
11. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed:
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12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime rt Branch, Salem, Tamil Nadu [(2019) 14 SCC 568], this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the 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 therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab (AIR 1960 SC 866) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 1412. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process .
or secure the ends of justice. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings.
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13. It was submitted that inquiry under Section 202 of Cr.P.C. is mandatory and the learned Trial Court had failed to conduct the inquiry.
rt This submission is not acceptable. Hon'ble Supreme Court considered the necessity of conducting an inquiry In re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881 2021 (16) SCC 116 and held that when the accused is residing outside the territorial jurisdiction of the Magistrate, the Magistrate has to conduct the inquiry. For this purpose he can examine the witnesses on affidavit and only in exceptional cases, he should examine the witnesses orally. If the Magistrate holds the inquiry himself, he need not examine the witnesses. In suitable cases, he can examine the documents to satisfy himself about the sufficiency of grounds for proceeding under Section 202 of Cr. PC. It was observed:-
10. Section 202 of the Code confers jurisdiction on the Magistrate to conduct an inquiry to decide whether sufficient grounds justifying the issue of process are made out. The amendment to Section 202 of the Code with effect from 23-6-2006, vide Act 25 ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 15 of 2005, made it mandatory for the Magistrate to conduct an inquiry before the issue of process, in a case where the accused resides beyond the area of jurisdiction of the court. (See : Vijay Dhanuka v. Najima Mamtaj [Vijay Dhanuka v. Najima Mamtaj, .
(2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479] , Abhijit Pawar v. Hemant Madhukar Nimbalkar [Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192] and Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd. [Birla Corpn.
Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 :
(2020) 2 SCC (Civ) 713 : (2020) 2 SCC (Cri) 828] ) There has been a divergence of opinion amongst the High Courts relating to the of applicability of Section 202 in respect of complaints filed under Section 138 of the Act. Certain cases under Section 138 have been decided by the High Courts upholding the view that it is mandatory for the Magistrate to conduct an inquiry, as provided rt in Section 202 of the Code, before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the court, it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process, if requisite satisfaction can be obtained from materials available on record.
11. The learned Amici Curiae referred to a judgment of this Court in K.S. Joseph v. Philips Carbon Black Ltd. [K.S. Joseph v. Philips Carbon Black Ltd., (2016) 11 SCC 105 : (2016) 4 SCC (Civ) 616 : (2017) 1 SCC (Cri) 270] where there was a discussion about the requirement of inquiry under Section 202 of the Code in relation to complaints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay Dhanuka [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638 :
(2015) 1 SCC (Cri) 479], Abhijit Pawar [Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192] and Birla Corpn. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Civ) 713 : (2020) 2 SCC (Cri) 828], the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 16 court cannot be dispensed with. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the .
learned Amici Curiae.
12. Another point that has been brought to our notice relates to the interpretation of Section 202(2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202(1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read of in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145(2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on rt an application of the prosecution or the accused. It is contended by the learned Amici Curiae that though there is no specific provision permitting the examination of witnesses on affidavit, Section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under Section 202. He suggested that Section 202(2) should be read along with Section 145 and in respect of complaints under Section 138, the examination of witnesses also should be permitted on affidavit. Only in exceptional cases, the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of the examination of the complainant by way of an affidavit. There is no specific provision in relation to the examination of the witnesses also on the affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202(2) of the Code is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on the affidavit. If ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 17 the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202.
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14. Therefore, in view of the binding precedent of the Hon'ble Supreme Court, there is no requirement for recording the statements of witnesses and the Magistrate is within its jurisdiction to peruse the documents to satisfy himself while conducting an inquiry under section of 202 of Cr.P.C.
15. In the present case, the learned Magistrate passed an order rt after going through the cheque, notice, preliminary evidence in the form of an affidavit and other documents attached to the complaint. He was satisfied that there existed sufficient ground to proceed against the accused under Section 138 of N.I.Act. Hence, the accused was ordered to be summoned.
16. It is apparent from the order that the learned Magistrate had not passed the order simply based on evidence but he has satisfied him by going through the documents, which is sufficient compliance with the provisions of Section 202 of Cr.P.C. as laid down in In re: Expeditious Trial of Cases (supra). Hence, the submission that there was non-
compliance with section 202 of Cr.P.C. is not acceptable.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 1817. It was submitted that the learned Magistrate had not passed a detailed order; hence, the order was bad. This submission is not .
acceptable. It was laid down by the Hon'ble Supreme Court in U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745: 2000 SCC OnLine SC 589, that there is no need to record reasons while issuing the summons. It was observed:
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6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing a process. There is no such legal requirement imposed on rt a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah v. State of W.B. [(2000) 1 SCC 722: 2000 SCC (Cri) 303] The following passage will be apposite in this context:
(SCC p. 726, para 12) "12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-
paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate it if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial."
(emphasis supplied) ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 19
18. This position was reiterated in State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 2019 SCC OnLine SC 132 .
wherein it was observed:
22. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused of under Section 204 CrPC is not the same at the time of framing the charge. For issuance of summons under Section 204 CrPC, the expression used is "there is sufficient ground for proceeding...";
whereas for framing the charges, the expression used in Sections rt 240 and 246 IPC is "there is ground for presuming that the accused has committed an offence...". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 CrPC, detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police have filed a chargesheet along with the materials thereon may be considered as sufficient ground for proceeding for the issuance of summons under Section 204 CrPC.
19. It was submitted that the matter has been compromised between the parties and reference to this effect was made to various documents annexed to the complaint. First, it is not permissible to look into the documents annexed to the petition under Section 482 of Cr.P.C.
It was laid down by the Hon'ble Supreme Court in MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1: 1983 SCC (Cri) 115, that the proceedings can be quashed if on the face of the complaint and the papers accompanying ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 20 the same no offence is constituted. It is not permissible to add or subtract anything. It was observed:
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"10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers of under Section 482 of the present Code."
20. Madras High Court also held in Ganga Bai v. Shriram, 1990 SCC OnLine MP 213: ILR 1992 MP 964: 1991 Cri LJ 2018, that the fresh rt evidence is not permissible or desirable in the proceedings under Section 482 of Cr.P.C. It was observed:
"Proceedings under Section 482, Cr.P.C. cannot be allowed to be converted into a full-dressed trial. Shri Maheshwari filed a photostate copy of an order dated 28.7.1983, passed in Criminal Case No. 1005 of 1977, to which the present petitioner was not a party. Fresh evidence at this stage is neither permissible nor desirable. The respondent by filing this document is virtually introducing additional evidence, which is not the object of Section 482, Cr.P.C."
21. Andhra Pradesh High Court also took a similar view in Bharat Metal Box Company Limited, Hyderabad and Others vs. G. K. Strips Private Limited and another, 2004 STPL 43 AP, and held:
"9. This Court can only look into the complaint and the documents filed along with it and the sworn statements of the witnesses if any recorded. While judging the correctness of the proceedings, it cannot look into the documents, which are not filed before the lower Court. Section 482 Cr.PC debars the Court to ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 21 look into fresh documents, in view of the principles laid down by the Supreme Court in State of Karnataka v. M. Devendrappa and another, 2002 (1) Supreme 192. The relevant portion of the said judgment reads as follows:
.
"The complaint has to be read as a whole. If it appears that on consideration of the allegations, in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When of information is lodged at the Police Station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court, which rt decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings".
22. A similar view was taken in Mahendra K.C. v. State of Karnataka, (2022) 2 SCC 129: (2022) 1 SCC (Cri) 401 wherein it was observed at page 142:
"16. ... the test to be applied is whether the allegations in the complaint as they stand, without adding or detracting from the complaint, prima facie establish the ingredients of the offence alleged. At this stage, the High Court cannot test the veracity of the allegations nor for that matter can it proceed in the manner that a judge conducting a trial would, on the basis of the evidence collected during the course of the trial."
23. This position was reiterated in Supriya Jain v. State of Haryana, (2023) 7 SCC 711: 2023 SCC OnLine SC 765, wherein it was held:
13. All these documents which the petitioner seeks to rely on, if genuine, could be helpful for her defence at the trial but the same ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 22 are not material at the stage of deciding whether quashing as prayed for by her before the High Court was warranted or not. We, therefore, see no reason to place any reliance on these three documents.
.
24. A similar view was taken in Iveco MagirusBrandschutztechnik GMBH v. Nirmal Kishore Bhartiya, 2023 SCC OnLine SC 125, wherein it was observed:
55. Adverting to the aspect of the exercise of jurisdiction by the of High Courts under section 482, Cr. P.C., in a case where the offence of defamation is claimed by the accused to have not been committed based on any of the Exceptions and a prayer for quashing, is made, the law seems to be well settled that the High rt Courts can go no further and enlarge the scope of inquiry if the accused seeks to rely on materials which were not there before the Magistrate. This is based on the simple proposition that what the Magistrate could not do, the High Courts may not do. We may not be understood to undermine the High Courts' powers saved by section 482, Cr. P.C.; such powers are always available to be exercised ex debito justitiae, i.e., to do real and substantial justice for the administration of which alone the High Courts exist.
However, the tests laid down for quashing an F.I.R. or criminal proceedings arising from a police report by the High Courts in the exercise of jurisdiction under section 482, Cr. P.C. not being substantially different from the tests laid down for quashing of a process issued under section 204 read with section 200, the High Courts on recording due satisfaction are empowered to interfere if on a reading of the complaint, the substance of statements on oath of the complainant and the witness, if any, and documentary evidence as produced, no offence is made out and that proceedings, if allowed to continue, would amount to an abuse of the legal process. This too, would be impermissible if the justice of a given case does not overwhelmingly so demand." (Emphasis supplied) ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 23
25. Therefore, it is not permissible to look into the material filed by the petitioner with the petition and the Court has to rely upon the .
contents of the F.I.R. and the material collected by the police during the investigation.
26. Secondly, the complaint pertains to the year 2018 and as per the petitioner, the matter was settled in the year 2019 after the issuance of of the cheque. Hence, no advantage can be derived from the documents annexed to the complaint.
27. rt It was submitted that the cheque was issued without consideration and the learned Trial Court erred in summoning the petitioner for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act. This submission is not acceptable. Sections 118 (a) and 139 of the Negotiable Instruments Act provide that the Court shall presume that every negotiable instrument was made for consideration and was issued in the discharge of whole or part of any debt or liability.
28. It was laid down in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148: 2023 SCC OnLine SC 1275 that the Court is bound to proceed with the presumption regarding the consideration of the cheque. It was observed at page 161:
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 2433. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of .
the Act stipulates that "unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, of not repeated--reference to one can be taken as reference to another]
34. Section 139 of the NI Act, which takes the form of a "shall presume" clause is illustrative of a presumption of law. Because rt Section 139 requires that the Court "shall presume" the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase "unless the contrary is proved".
35. The Court will necessarily presume that the cheque had been issued towards the discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that the cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35] ]
36. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 : (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40] ]. Therefore, the mere admission ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 25 of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
37. As soon as the complainant discharges the burden to prove .
that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have of to be taken to be true, without expecting the complainant to do anything further.
38. John Henry Wigmore [John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law] on Evidence states as follows:
rt "The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule'."
39. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of "preponderance of probabilities", similar to a defendant in a civil proceeding. [Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184 : AIR 2010 SC 1898] ]
29. Thus, the submission that the cheque was issued without consideration or any legal liability is not acceptable at this stage.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 2630. The judgments of the Hon'ble Supreme Court in Vijay Dhanuka's case (supra), Abjijeet Panwar's case (supra) and Smt. Neeta .
Sinha's case (supra) regarding the necessity of conducting inquiry need not be discussed in view of the subsequent judgment In re: Expeditious Trial's case (supra).
31. In Birla Corporation Limited's case (supra), the Hon'ble of Supreme Court was dealing with the case under IPC. This is not the case here. In K.S. Joseph's case (supra), the Hon'ble Supreme Court was rt dealing with inquiry under Section 140 and under Section 202 of Cr.P.C., which has been discussed in re: Expeditious Trial's case (supra). Hence, none of these judgments applies to the present case.
32. No other point was urged.
33. In view of the above, the present petition fails and the same is dismissed.
34. The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 12th January, 2024 ravinder) ::: Downloaded on - 12/01/2024 20:36:59 :::CIS