Punjab-Haryana High Court
Tanvi Garg vs Rajat Gupta on 14 December, 2022
CRM-M-43578-2016 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-43578-2016
Date of decision : 14.12.2022
Tanvi Garg
.....Petitioner(s)
VERSUS
Rajat Gupta
..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
Present: Mr.SS Narula , Advocate for the petitioner
Mr.Sumeet Goel, Sr. Advocate with
Mr.Samir Rathore, Advocate for the respondent
AMAN CHAUDHARY, J.
The present petition under Section 482 Cr.P.C. has been filed seeking quashing of complaint No.6642 dated 16.07.2015, titled as "Rajat Gupta vs. Tanvi Garg" under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act'), order dated 16.07.2015, Annexure P-2, passed by learned trial Court and order dated 19.09.2016 passed by learned Additional Sessions Judge, Chandigarh.
Briefly put, the facts as emerge from the complaint are that the complainant-respondent was stated to have been seeking guidance and instructions from the father of the petitioner for his preparation for civil services examination and interview. During that period, on a request made by the petitioner, he advanced a friendly loan to her. The cheque dated 02.06.2015, was issued for the discharge of the said liability, but on presentation thereof, it was dishonoured with remarks "insufficient funds"
vide memo dated 15.6.2015. This led to serving a legal notice dated 1 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 2 19.06.2015, sent through registered post of even date. Thereafter, complaint was filed on 13.07.2015, under Section 138 NI Act.
Learned counsel for the petitioner would contend that the summoning order has been passed without due application of mind.
Submission next raised by him is that in the legal notice, Annexure P-7, the factum of amount having been loaned in two installments was mentioned to be as April/May, 2015, whereas in the complaint Annexure P-1, it was mentioned as April/ May, 2014. Thus, the legal notice, which is the basis of initiation of proceedings under Section 138 NI Act is in itself not valid. He further refers to the application seeking anticipatory bail, Annexure P-15 and the petition filed for quashing of FIR, Annexure P-16, lodged against the complainant-respondent, wherein it has been mentioned that the amount in question was advanced to the petitioner and her family, which is contrary to the averments made in the complaint, wherein it was stated that it was loaned to the petitioner. In wake of this, learned counsel would submit that there is no legally enforceable debt, arising in the case, once the complainant himself had specifically mentioned that it was an amount loaned to the petitioner as well as her family, as to why, the petitioner would issue a cheque to discharge the liability of her family, is not forthcoming.
These documents are of the complainant-respondent himself, as such are of sterling quality, was his submission. The charges have been framed against the complainant-respondent in the FIR lodged under Section 380 IPC. The petition filed by the complainant-respondent seeking quashing of the aforesaid FIR was withdrawn by him before this Court, thereby the presumption raised against the petitioner stands dispelled and rebutted.
2 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 3 His further submission is that there is no averment in the complaint as to whether the amount was paid in cash or by way of cheque and the details of the amount or the dates of installments are also not reflected. The complainant-respondent being a student has not been able to demonstrate in the complaint as to whether he had the funds to advance the loan. Lastly, that in case the loan advanced by the complainant-respondent was by way of cash, the same would be in violation of the Section 269SS of the Income Tax Act. To buttress his submissions, reliance is placed on the judgments of Hon'ble The Supreme Court of India in the cases of M/s Pepsi Food Ltd. vs. Special Judicial Magistrate, 1997(4) RCR (Crl.) 761 and State of Orissa vs. Debendra Nath Padhi, 2005(1) RCR (Crl.) 297.
Contrarily, learned Senior Counsel submits that the FIR has not been lodged by the petitioner but is by her father, the allegations of having stolen the cheque have yet not been proved, as the evidence has still to be led during the course of trial. Furthermore, the averments made in the legal notice and the complaint, which are the basis of the prosecution under Section 138 NI Act, are absolutely clear that the loan was advanced to the petitioner. The mention of the word 'her family' alongwith her name in the application seeking anticipatory bail as also the quashing petition, would make no difference inasmuch as, still the name of the petitioner is specifically mentioned therein, to whom the loan has been advanced, even otherwise what matters in the proceedings under Section 138 NI Act is the complaint. The petitioner had previously also challenged the summoning order by way of filing a quashing petition, which came to be withdrawn on 01.10.2015, Annexure P-19, whereafter, she had unsuccessfully challenged
3 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 4 the summoning order before the Court of Additional Sessions Judge, thus the present petition though filed under Section 482 Cr.P.C. amounts to a second revision, the scope of which is limited. Further said was that although the learned Additional Sessions Court noticed the fact that the revision was neither signed by the petitioner nor supported by her affidavit, as it was filed by her father, still it was considered on merits and was dismissed by passing a detailed judgment on merits and not on the ground of technicality. This petition, therefore, amounts to second revision. Reliance is placed on the judgments of Hon'ble The Supreme Court of India in the cases of Krishnan vs. Krishnaveni and another, 1997(1) RCR (Crl.) 724, as reiterated in the case of Shakuntala Devi and others vs. Chamru Mahtro and another, 2009(2) RCR (Crl) 125.
Further submission was that once the signatures on the cheque are admitted by the petitioner, the presumption of a legal enforceable debt is drawn against her, which has to be otherwise discharged by her, based on preponderance of probabilities under Section 139 NI Act. Referred to was Section 20 of NI Act also, to submit that any document, wherein the signatures stand admitted, would be a valid instrument, for which reliance was placed on the judgment by Hon'ble The Supreme Court of India in the case of Oriental Bank of Commerce vs. Prabodh Kumar Tewari, SLP (Criminal) No.9836 of 2019, decided on 16.08.2022 and by this Court in the cases of Sudhir Kumar vs. Padam Singh, 2022(2) RCR (Crl.) 563 and Sukhijinder Singh vs. Buta Singh, CRM-M-30633-2019, decided on 19.07.2019.
Heard.
4 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 5 Adverting to the admitted facts that emerge from the submissions, as raised by the respective counsel, which also emanate from the record are that the cheque in question is dated 02.06.2015, was dishonoured on 15.06.2015, legal notice thereof was sent on 19.06.2015, whereafter, the complaint was filed on 13.07.2015 under Section 138 NI Act, wherein summoning order dated 17.07.2015 was passed by the trial Court, which was served on the petitioner. Thereafter, father of the petitioner lodged an FIR under Section 380 IPC on 31.07.2015, against the complainant-respondent, for having stolen the signed cheque in question, stating therein that the said cheque was left by his daughter with him, but remained untraced for a long time and being considered as mixed up with some of the papers, which he was taking lightly.
The pith and substance of the submissions, as ably advanced on behalf of the petitioner is that the cheque in question, though was admittedly signed by her, as also averred in para 2 of the present petition, yet it has been stated therein that she had left the same with her father for making small usual payments in her absence, on account of her having been transferred to Port Blair. However, it was stolen by the complainant- respondent, on account whereof, FIR under Section 380 IPC had been got lodged against him by her father.
The gist of the submissions, as put forth by the learned Senior Counsel with vehemence on behalf of the complainant-respondent, are that the defence of the petitioner regarding the cheque in question being indeed stolen or not, is to be proved, as the trial having not culminated. As such, the factum of registration of the FIR, could not at this stage, ipso facto lead to a 5 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 6 conclusion against the complainant-respondent and in favour of the petitioner, as the proceedings in the FIR are still to be unfolded.
Section 138 of the Act, reads thus:-
"138- Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both.
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
Section 138 NI Act creates a deeming offence. Provision envisages a person, who is the signatory to the cheque, which is drawn on an account maintained by the said person, issued for the discharge of debt, has been returned by the bank unpaid, can be said to have committed an offence.
6 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 7 For the default of which, a legal notice of demand is sent, providing for an opportunity of responding to the same or to discharge the said debt.
In so far as the submission of the petitioner with regard to non- application of mind, while passing the summoning order is concerned, the learned trial Court had rightly passed the impugned order by relying on the law laid down by Hon'ble The Supreme Court of India, which reads thus:-
"In view of the facts and circumstances of the instant case and dictum of settled legal position, this Court is of the considered view that in totality and with greatest circumspection that there is a force in the line of the reasoning adopted by the counsel for the complainant as it pima facie transpires from the averments of complaint, affidavit and documents on record that there is "sufficient material" to issue process against the accused in consonance with the provision of law as contained under Section 138 of Negotiable Instruments Act, 1881. Furthermore, the detailed expression of opinion is avoided as it is no longer necessary in view of the law laid down by Hon'ble Supreme Court in case cited as UP Pollution Board vs. Mohan Meaken Ltd. 2002(2) RCR (Crl.), 421 and Deputy Chief Controller of Imports and Exports vs. Roshan Lal Aggarwal 2003(2) RCR (Crl.) 110."
Here a fact worth a notice also being, as has been brought out, that the petitioner had earlier filed a petition bearing CRM-M-33735-2015, under Section 482 Cr.P.C. before this Court seeking quashing of the present complaint, as also the summoning order, which was withdrawn to avail of alternative remedy available under Section 397 Cr.P.C.
The revisional Court dismissed the challenge to the summoning order after considering the submissions as advanced on behalf of the parties, by passing a well reasoned judgment, as is axiomatic from the following:
"6. Both learned counsel for the parties have argued on the lines of their case. Lengthy arguments are there by 7 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 8 learned counsel for the revisionist. After going through the record as well as considering and taking a guidance from various authorities relied upon by learned counsel for the revisionist, this court is of the considered view that although it is argued by counsel for revisionist that order of Magistrate summoning the accused should reflect application of mind. Mere examination of some witnesses is not sufficient. By going through the record of learned trial court it is clear that complainant has led preliminary evidence and proved his affidavit ExCW1/A along with various documents ExC1 to ExC8. ExC1 is cheque in question, ExC2 is memo of bank for dishonour of the cheque due to insufficient fund, ExC3 is one communication from Parbhat B. Garg in favour of Rajat Gupta, ExC4 is legal notice sent through registered AD post, receipt of which is ExC5 addressed to revisionist, ExC6 is postal delivery receipt, ExC7 is letter by PA of the revisionist addressed to Shri R.S. Walia and Subodh Walia Advocates of complainant, ExC8 is registered AD cover vide which this letter was received by learned counsel for complainant. As per provisions of Section 118 of Negotiable Instruments Act read with provisions of Sections 138 to 142 it is very much clear that holder of cheque in due course has presumption to hold it and the person who had issued the same for discharge of liability. At the stage of preliminary evidence it is sufficient to prove on record that cheque is presented and same is dishonoured for want of sufficient fund. Legal notice has been issued within the stipulated time and thereafter payment has not been made, then complaint has been presented that also within stipulated time.
7. In the case in hand the legal notice has been delivered at the given address of revisionist and received by PA. In this regard he has sent reply/communication to the counsel for the complainant. In the revisional jurisdiction this court has to call the record and satisfy regarding correctness, legality or propriety of any finding or order. This court cannot go through findings on fact while disposing of revision. At the time of summoning the accused, it is prerogative of Magistrate to see if offence is made out. So, this court is to see if all the legal requirements are there which constitutes offence. In the grounds of revision, it has been agitated that complainant has not disclosed his source of income and cheque was in his hand, as same was stolen by him. It is also pleaded that case has been got registered by revisionist against the complainant. Mere investigation by the police cannot be treated that theft has been proved. It is again a matter of fact that on all this, evidence has to be led by 8 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 9 complainant and also by revisionist in her defence. Taking of such ground by the revisionist is essentially a question of fact. At the preliminary stage there was no such requirement for the complainant to prove his source of income of advancing of money to the revisionist. Otherwise also, it is a defence as taken by the revisionist. The presumption of law is there under Section 118 of Negotiable Instruments Act which is no doubt rebuttable. Revisionist can bring the evidence in defence for rebutting such presumption, but she cannot take all these grounds in her revision. The law has been relied upon by learned counsel for the revisionist cited as M/s Pepsi Foods Ltd. Versus Special Judicial Magistrate 1997(4) R.C.R. (Criminal) 761, P. Venugopal Versus Madan P. Sarathi 2009(1) R.C.R (Criminal) 243, Krishna Janardhan Bhat Versus Dattatraya G. Hegde 2008 (1) R.C.R (Civil) (Criminal) 695 (SC) and M.S. Narayana Menon Alias Mani Vs. State of Kerala and another 2006 (3) RCR (Criminal) 504. In all these authorities, Hon'ble Supreme Court has held that whatever grounds have been taken by revisionist in this case are the question of facts regarding which truth can come on record after the parties are allowed to adduce evidence. So in considered view of this court, at this stage it is mere defence and can be seen after trial is over and at the time of final decision if revisionist is able to rebut the presumption of law. So these authorities as relied upon are not applicable to the facts of this case at this stage. Hence all these are distinguished.
8. Counsel for respondent has raised technical point that neither this revision petition has been signed by the revisionist nor supported by affidavit. Rather affidavit has been given by her father Prabhat B. Garg. It is totally technical approach and such grounds cannot be taken in revision as this court is otherwise competent to call for the record of the trial court to see correctness and legality of the order passed by learned trial court which is under challenge. So by not going on this technical ground otherwise this court is of considered view that there is no legal infirmity in the order of learned trial Court. I uphold the order of learned trial court regarding summoning of revisionist for facing trial. There is no merit in the present revision. So, same is dismissed. Record of trial Court be sent back along with copy of this order.
Revision file be consigned to the record room."
Recapitulating the exposition of law by Hon'ble The Supreme 9 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 10 Court of India, in the cases of Rangappa vs. Sri Mohan, 2010 (3) R.C.R. (Criminal) 164, K.Bhaskaran vs. Sankaran Vaidhyan Balan and another, (1999) 7 SCC 510, Triyambak S.Hegde vs Sripad, 2021 SCC OnLine SC 788, Bhupesh Rathod vs. Dayashank Prasad Chaurasia, (2022) 2 SCC 355, P.Rasiya vs. Abudl Nazer and another, 2022(4) RCR (Crl.) 674, Jain P. Jose vs. Santosh and another, Criminal Appeal No. 1941 of 2022, decided on 10.11.2022, that once the signatures on the cheque are admitted, presumption as envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of debt or liability. Still further, a reverse onus is cast on the accused, who has to establish a probable defence on the standard of proof being preponderance of probabilities, as has been held by Hon'ble The Supreme Court of India in the case of Basalingappa vs. Mudibasappa, (2019) 5 SCC 418.
The arguments of the counsel for the petitioner raised by referring to the alleged crevices in the pleadings that at one place it was stated the amount in question was loaned only to the petitioner and at another that it was to her and the family or that the year of the same was 2014 and at another as 2015, also with regard to the capacity of the complainant-respondent to advance loan, violation of the Section 269SS of the Income Tax Act besides the cheque having been stolen, are concerned, being a matter of evidence, cannot be gone into at this stage, as is abundantly clear from the judgment of Hon'ble The Supreme Court of India in the case of State of Uttar Pradesh vs. Akhil Sharda and others, 10 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 11 2022(3) RCR (Crl.) 841, wherein it has been held that, "Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions, no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered."
Furthermore, in the judgment Krishna P. Morajkar vs. Joe Ferrao and another, 2013(4) RCR (Crl.) 539, it has been held that if some amounts are not accounted for, the person would be liable for penalty or prosecution under the Income Tax Act, however, the borrower on such premise cannot refuse to pay the amount that there is some infraction of the provisions of the Income Tax Act, the same being a matter between the revenue and the defaulter.
It is apposite to refer to the judgment of Hon'ble The Supreme Court in the case of Rathish Babu Unnikrishnan vs. The State (Govt. of NCT of Delhi) & anr, SLP(Crl) Nos.5781-5782 of 2020 wherein it was held that, "The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the 11 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 12 trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption."
The assertion with regard to the factum of cheque in question having been stolen, cannot be taken to be a ground for quashing the prosecution at the nascent stage, as the veracity of the allegation is yet to be established. In the teeth of the statutory provisions of Sections 118 and 139 NI Act, it may be a probable defence, to rebut the presumption. The impugned cheque has been issued from the account of the petitioner and it has been signed by her. This is not in dispute. It was presented to the bank concerned within the period of validity and was returned unpaid for the reason of balance being 'insufficient'. Thus, the basic ingredients of Section 138 NI Act as also of Sections 118 and 139 NI Act are prima facie evident. Trite it is that in a petition filed for quashing of a complaint, the disputed questions of fact cannot be gone into.
Hon'ble The Supreme Court of India in the cases of Krishnan and Shakuntala Devi (supra), held that in appropriate cases in order to meet the ends of justice or to prevent abuse of the process, the High Court is preserved with inherent power, which should be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of the introduction of sub-section (3) 12 of 13 ::: Downloaded on - 21-12-2022 20:30:53 ::: CRM-M-43578-2016 13 in Section 397 Cr.P.C. was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant, who had lost before the Sessions Judge, were not completely closed and in special cases the bar under Section 397(3) Cr.P.C. could be lifted.
Thoughtful consideration given to the overall conspectus of facts and circumstances of the case, as narrated hereinbefore, the legal provisions and having implored itself with the exposition of law by the abounding pronouncements of Hon'ble The Supreme Court, this Court does not find any reason to exercise its inherent jurisdiction to quash the complaint and the consequent proceedings arising therefrom.
As a corollary thereto, the present petition being bereft of merit, is hereby dismissed.
It is made clear that nothing contained in this judgment shall be construed as an expression of opinion on the merits of this case.
14.12.2022 (AMAN CHAUDHARY)
gsv JUDGE
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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