Anil Kumar v. State of Uttarakhand and another

Judgment

1. The applicant has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), seeking quashing of the summoning order dated 07.09.2016 passed by the learned Additional Chief Judicial Magistrate, Laksar, District Haridwar in Criminal Complaint Case No. 268 of 2016 (Sandeep Kumar vs. Anil Kumar), under Section 138 of the Negotiable Instruments Act, 1881, and also for quashing of the criminal proceedings arising therefrom.

As per the FIR, the case of the complainant (respondent no. 2 herein) is that in April 2016, the applicant had taken a hand loan of ₹4,00,000/- in cash from him. In discharge of the alleged liability, the applicant issued a cheque bearing No. 037958 dated

31.05.2016 drawn on Bhartiya Mahila Bank Ltd., Shahpur, District Haridwar. The cheque, upon presentation, was dishonoured with the endorsement “Funds Insufficient.” A statutory demand notice dated

01.07.2016 was issued, but the amount remained unpaid. Criminal Misc. Application No.74of 2018, Anil KumarVs State of Uttarakhand and Anr - 1 Ashish Naithani J. Consequently, the complaint under Section 138 of the NI Act was filed before the learned Magistrate.

3. The learned Magistrate, after recording the statement of the complainant under Section 200 CrPC and upon perusing the cheque, the bank return memo, copy of statutorynotice, and postal receipts, found that a prima facie offence under Section 138 NI Act was made out and summoned the applicant for appearance vide order dated 07.09.2016.

4. The applicant has challenged the said summoning order on several grounds. Firstly, it is contended that the cheque in question had been lost prior to the alleged transaction, and an intimation regarding its loss had been lodged at P.S. Kotwali Jwalapur on 14.03.2016.

5. Further, it is also submitted that no statutory notice was served upon the applicant. Thus, the mandatory condition precedent for prosecution under Section 138 of the NI Act was not fulfilled.

6. Learned Counsel for the Applicant also submitted that the summoning order has been passed mechanically without due application of mind and that the entire transaction is fabricated, as neither party possessed the financial capacity for such a high-value cash loan.

7. Per contra, learned counsel appearing for respondent no. 2 submits that all the essential ingredients of the offence under Section 138 of the NI Act are prima facie made out. The complaint is supported by the cheque, return memo, notice and postal receipt. It is Criminal Misc. Application No.74of 2018, Anil KumarVs State of Uttarakhand and Anr - 2 Ashish Naithani J. further contended that the disputed defence of cheque misuse or absence of service of notice is a factual matter that requires adjudication during the trial. Learned A.G.A. has also supported the impugned order.

8. Heard learned counsel for the parties and perused the records.

9. The scope of interference under Section 482 CrPC is well delineated by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, where illustrative categories were laid down wherein the inherent jurisdiction may be exercised to prevent abuse of the process of court. However, the power is to be exercised sparingly and only when the complaint does not disclose the commission of any offence or when the proceeding is manifestly attended with mala fides.

10. In Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, (2021) 6 SCC 116, the Hon’ble Supreme Court reaffirmed that when a complaint discloses a cognisable offence and the allegations are not inherently improbable or absurd, the High Court should not interfere at the threshold merely on disputed questions of fact. The Court must refrain from embarking upon a mini-trial or pre-empting the defence at the stage of summoning.

11. In the present case, the complaint clearly discloses the ingredients of the offence under Section 138 NI Act: (i) issuance of cheque in discharge of a legally enforceable debt, (ii) dishonour for insufficiency of funds, (iii) issuance of notice within the statutory Criminal Misc. Application No.74of 2018, Anil KumarVs State of Uttarakhand and Anr - 3 Ashish Naithani J. period, and (iv) failure to pay the cheque amount within 15 days of receipt. The complainant has supported the same with documentary material.

12. The plea of loss or misuse of the cheque, and the alleged non-receipt of the statutory notice are matters of defence which can be appropriately raised and tested during the trial. At the stage of summoning, the Magistrate is only required to be satisfied that a prima facie case exists. The order dated 07.09.2016 records a reasoned satisfaction and cannot be termed as mechanical or perfunctory.

13. The applicant’s contention regarding financial incapacity or improbability of the transaction is also a matter for trial. The NI Act presumes the existence of consideration under Section 139 once the issuance of a cheque is admitted. In Rangappa v. Sri Mohan(2010) 11 SCC 441, the Hon’ble Supreme Court held that the presumption under Section 139 includes both issuance and existence of a legally enforceable debt or liability. The burden is upon the accused to rebut the presumption, which again is a matter of evidence. ORDER

14. This Court is of the view that the summoning order impugned herein does not suffer from any legal infirmity or perversity. The learned Magistrate has exercised jurisdiction in accordance with law, and no ground is made out for invoking the inherent powers of this Court under Section 482 CrPC.

15. Accordingly, this Court finds no merit in the present Criminal Miscellaneous Application. Criminal Misc. Application No.74of 2018, Anil KumarVs State of Uttarakhand and Anr - 4 Ashish Naithani J.

16. The application stands dismissed.

16.05.2024 ARTI SINGH Digitally signed by ARTI SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=487ed955e722ba65aab55409e686c12fb83a19325e8b66890fbee418e7b69c0d, postalCode=263001, st=UTTARAKHAND, serialNumber=26DC90E00D839E3E8714131F235087D2D87E133C57E7F4A7B2E734BE2521 F982, cn=ARTI SINGH (Ashish Naithani J.) Criminal Misc. Application No.74of 2018, Anil KumarVs State of Uttarakhand and Anr - 5 Ashish Naithani J.