Dilip Dhritlahare v. Bhisham Chand Luniya

Hon'ble Shri Ramesh Sinha , Chief Justice

21.02.2024 Order on Board

1. Heard Mr. Rakesh K. Manikpuri holding the brief of Mr. Sandeep Shrivastava, learned counsel appearing for the petitioner. None appeared for the respondent.

2. The present petition has been filed by the petitioner with the following prayer: “It is therefore, prayed that this Hon’ble Court be kindly be pleased to quash the criminal proceedings pending against the petitioner in the Court of Judicial Magistrate First Class, Kabirdham as Case No. 13/14 registered under Section 138 of the Act of 1881 and discharge the petitioner of that charge in the interest of Justice.”

3. The facts of the case, are that, the respondent/complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 2 1881 (hereinafter called as “NI Act”) against the petitioner herein stating that he is a dealer of Ultra Tech Cement and he is running a shop in the name and style of 'Satish Enterprises’ situated at Minimata Chowk, Raipur Road, Kawardha. On 27.7.2011, the petitioner herein had purchased 250 bags of cement from the respondent and towards payment of said cement he gave a Cheque No. 807798 dated 27.7.2011 of Rs.50,000/- drawn on Rajnandgaon Rural Bank, Kawardha. On 28.7.2011 the respondent/complainant presented the said cheque with his banker for encashment, however, vide memo dated 28.7.2011 the respondent/complainant has been informed that the cheque presented by him has been returned unpaid and dishonoured due to “insufficient fund” in the account. Thereafter, the respondent/complainant served legal notice dated 19.8.2011 on the petitioner through his counsel demanding therein payment of Rs.50,000/- within the stipulated period. However, the petitioner neither replied the said notice nor made the payment of said amount. After expiry of the statutory period, the respondent/complainant has filed against the petitioner for taking cognizance under Section 138 of the NI Act against the petitioner.

4. On filing such complaint, the trial Court after recording primary evidence issued notice to the petitioner and when the petitioner appeared before the Court, the particulars of charge was framed. After framing of charge, the matter was fixed for recording of evidence, however, when despite grant of several opportunities the respondent/complainant failed to adduce evidence in support of his complaint, the trial Court vide order dated 5.01.2017 granted last 3 opportunity to the complainant to adduce evidence in support of his case and fixed the case on 14.02.2017. The complainant instead of adducing evidence has moved an application under Section 284 of Cr.P.C. for dispensation of attendance of any witness and issuance of commission, which is still pending consideration. The petitioner filed reply to the aforesaid application seeking not only rejection of the said application but closure of right of the complainant to lead evidence. The complainant in his complaint has stated that after the sale of 250 bags of cement, he has issued Bill No.51 to the petitioner, however, the complainant has not filed the carbon copy of the said bill to prove the sale of aforesaid quantity of cement to the petitioner. Apart from this, the complainant has claimed himself to be a dealer of Ultratech Cement, but, any document establishing the said fact has not been brought on record by the complainant. Thus, the complainant has utterly failed to prove that cheque in question was issued for a consideration, as provided under Section 118 (a) of the NI Act. From the above-stated facts, it is manifestly clear that even if the entire complaint of the complainant is treated as Gospel truth, the complainant has failed to bring home any material even for issuance of summons much less for trial under Section 138 of the NI Act, the registration of case by the trial Court and its continuance is abuse of process of Court and abuse of process of law. Hence, this Petition.

5. Learned counsel for the petitioner submits that the registration and continuance of criminal proceedings against the petitioner in the facts and circumstances of the case is contrary to the law applicable 4 to the facts of the present case. The trial Court failed to see that the cheque in question has been dishonoured as the signature on it differs from the signature of the drawer and thus ingredients of Section 138 of the NI Act, that the account-holder had no sufficient funds at the credit of his account or that the amount in the cheque exceeded the amount which the account-holder had at his credit, had not been established in the case. Once the cheque is returned on account of structural defect like difference in signature, then, the bank is not supposed to give any other reason in the bank memo and if any other ground is given that cannot be considered because the instrument itself was defective due to the structural defect. Further, the complainant has failed to discharge the burden of proving that the cheque in question was issued to him in discharge of any debt or liability because no document showing sale & purchase of alleged 250 bags cement has been filed by the complainant. The inherent power of this Hon'ble Court and the judicial conscience has to be invoked for quashing the criminal proceedings against the accused which would otherwise be causing abuse of process of law and would in turn be saving the precious time of the Court which would be wasted in holding trial especially when it is clear as the noon of the day that the same would not conclude in conviction of the accused for want of valid sanction by the competent authority for prosecution of the petitioner. As such, the petition deserves to be allowed and criminal proceeding pending against the petitioner in the Court of Judicial Magistrate First Class, Kabirdham in Criminal Case No.13/14 deserves to be quashed. 5

6. I have heard the learned counsel for the petitioner and perused the records of the Courts below.

7. Section 138 of the NI Act states as under:- “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 [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 (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.” 6

8. It is well settled that power under Section 482 of the CrPC as held by the Hon'ble Supreme Court in the matter of State of Haryana and others v. Bhajan Lal and others should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It should be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In this case, the Hon'ble Supreme Court has laid down the following seven categories 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 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. (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 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 so 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 7 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.”

9. Considering the role attributed by the present petitioner and the material available on record, this Court is of the view that it is not a case where inherent powers under Section 482 of the CrPC should be exercised for quashment of criminal proceedings initiated against the petitioner.

10. Accordingly, the petition being bereft of any merit is liable to be and is hereby dismissed. Interim relief, if any, granted earlier stands vacated. The trial Court is directed to conclude the trial expeditiously, if already not concluded.

11. A copy of this order be sent to the concerned trial Court for necessary compliance and follow up action. Sd/- (Ramesh Sinha) Chief Justice Preeti