Delhi High Court
Sh. Bishan Dayal vs Sh. Dinesh Kumar Singal on 23 March, 2007
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. The present petition under Section 482 Cr.P.C. seeks quashing of criminal proceedings pursuant to a complaint preferred by the second respondent (hereinafter referred to as "the complainant") . The complainant had alleged commission of offences under Section 138, Negotiable Instruments Act ("the Act") by the Petitioner.
2. The allegations in the complaint were that the petitioner accused had issued cheques to him, towards valuable consideration and in part discharge of loan amounts secured by the petitioner from him. It was claimed that when the instruments were presented, the payee's bank returned them with the remarks "Accounts Closed". The complainant allegedly issued notice calling upon the Petitioner- accused to make good the amounts in terms of the cheques within the stipulated notice period. The demands were not complied with; in these circumstances the complaints were preferred.
3. Mr. R.K. Kapoor, learned Counsel contends that the petitioner did not owe any amount to the respondent-complainant. The complainant, according to the petitioner's version was his Clerk/Accountant and privy to his business. The petitioner, it is contended, was ailing at that time, due to Diabetic Nephropathy, leading to renal failure for 15 years and had to frequently undergo dialysis. He heavily depended upon the complainant, and his son later joined the business when the respondent was already working for him. It is contended that during the interregnum several blank, signed cheques were kept for routine use and in safe custody; the complainant had access to them. It is claimed that at the relevant time without the knowledge or authorization of the petitioner, the complainant stole the cheques and sought to present them to the banker after filling them with amounts.
4. Mr. Kapoor contended that the petitioner had intimated the concerned police authorities at the relevant time when he became aware about the conversion of cheques by the complainant. He placed reliance upon the complaints made in that regard, to local police authorities at Narnaul in Haryana in April, 2004 and subsequently in September, 2005.
5. It was averred and contended that the complaint proceedings pending before the Court are in abuse of the judicial process as the cheques were forged and not supported by any consideration. It was submitted that order to invoke the remedy of a special procedure, the complaint has to clearly aver and disclose that the accused/drawer had issued the cheque or instrument, in discharge of a legally recoverable debt. Counsel contended that the circumstances of this case show that no legally recoverable debt or liability of the petitioner existed and, therefore, the proceedings were liable to be quashed. It was urged that the law required strict compliance of the provisions of Section 138, which mandates that the complainant should disclose the nature of the liability due and that the same is legally enforceable.
6. Counsel for the second respondent-complainant opposed the petition and urged that at the stage of issuance of summoning order, the Court has to be merely satisfied that the ingredients under Section 138 were made out; this has to be on the basis of the allegations in the complaint, the documents presented and the pre-summoning evidence. The Court, in this case, upon being satisfied that all the necessary averments and materials existed on record, issued the summoning order. There is no infirmity with it.
7. Learned Counsel contended that the allegations of the Petitioner regarding circumstances relatable to issuance of cheques cannot be gone into by the Court at this stage and in any case by this Court under Section 482 as they are disputed questions of fact. Whatever be the defenses of the petitioner, they are open to him in the triable.
8. Counsel contended that there are sufficient averments in the complaint, indicative that the cheques were drawn to discharge a legal liability and was a legally enforceable debt. It was submitted that the Court has to construe the pleadings in this respect in a broad manner and it is not necessary that that the terminology in Section 138 is replicated in the pleadings. He relied upon the judgment of the Supreme Court in K.P.G. Nair v. Jindal Menthol India Ltd. for the submission that the substance of the allegations, have to be read as a whole and there is no need to mechanically reproduce the language of Section 138.
9. Learned Counsel also alleged that even, otherwise, the question as to whether the petitioner was not liable or that the cheques had been never issued by him are issues of fact which have to be gone into in the proceedings before the trial Court and he relied upon the judgment reported as T.N. Newsprint and Papers Ltd. v. Laxmi and Anr. 2004 (13) SCC 366.
10. The factual narrative shows that the complaint was premised upon dishonour of cheques said to have been issued by the petitioner. The petitioner disputes that he issued the cheques and that they were in discharge of any legally enforceable debt. The petitioner has apparently also lodged some complaints with police authorities alleging loss and misuse of the cheques. He has contended that the amounts were not payable by him as there was no transaction leading to his debt or liability. The question, therefore, is whether in such circumstances this Court can, on the basis of these allegations quash criminal proceedings.
11. In complaint proceedings alleging commission of offence under Section 138, the Court while issuing the summoning order is expected to ascertain and satisfy itself that the averments made and the materials placed before it broadly conform to the ingredients of that provision. The object of the provision amended further in 2002, was to enable speedy recovery of amounts payable through Negotiable Instruments that are not honoured.
12. The Court in exercise of its powers under Sectikon 482 undoubtedly has jurisdiction to quash criminal proceedings. However, though facially wide, there are certain well-recognized fetters controlling exercise of such powers. These include avoidance by the Court to enter into and adjudicate upon disputed questions of fact which legitimately fall within the domain of the trial Court. Where the Court is satisifed that the complaint or First Information Report, taken in totality do not disclose any facts that may constitute the offence alleged, where the Court conducting the trial lacks jurisdiction or that the surrounding circumstances establish mala fides, jurisdiction would not be denied, and a quashing order would be issued.
13. In the decision reported as MMTC Ltd. v. Medchil Chemicals & Pharma (P) Ltd. the Supreme Court held, inter laia, as follows:
There is therefore no requirement that the complainant must specifically allege in the complaint there are was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability.
14. It is, therefore, evident that as to whether a legally enforceable debt exists in favor of the complainant or not, should not be pre-judged by the High Court. If there is some indication in the complaint, invocation of the power under Section 482 Cr.P.C. would not be justified. In the present case the complainant has unequivocally asserted that the cheques were issued in part payment of a loan or advance obtained by the Petitioner. The veracity or accuracy of that assertion should not be gone into by this Court; it is open to be considered in the trial. For the purpose of this proceeding, I am satisfied that such averments conform to the stipulation in Section 138 of the Act.
15. As regards the other contention namely, absence of liability of the petitioner due to loss or theft of the cheques, those are essentially matters of fact relating to his defense; being disputed questions, they do not qualify as grounds calling for interference under Section 482, Cr.P.C.
16. In view of the above conclusions, no reliefs can be granted in these proceedings.
The Petition is accordingly dismissed without any orders as to costs.