Rita Pant v. Presence

Judgment

1. The present criminal miscellaneous application under Section 482 of the Code of Criminal Procedure, 1973, has been moved by the Applicant, Smt. Rita Pant, seeking quashing of the summoning order dated 10.08.2018 passed by the learned Chief Judicial Magistrate, Almora in Criminal Complaint Case No. 824 of 2018 (Arun Verma v. Rita Pant and others), as well as all proceedings arising therefrom.

2. As per the allegations in the complaint, the complainant/ Respondent No. 2,had extended a loan of ₹95,00,000 Applicant,given a longstanding acquaintance and on the strength of her business associations. It is stated that the cheque dated 10.04.2018 was drawn on the State Bank of India, and upon its dishonour on

08.05.2018, a legal notice was issued on 29.05.2018. The notice is claimed to have been served on 02.06.2018, but no reply or repayment followed. The complaint was thereafter filed before the learned Chief Judicial Magistrate, Almora, who summoned the Applicant to face trial after considering the material on record. Criminal Misc. Application No.1780 of 2019, Rita Pant Vs State of Uttarakhand and Anr - 1 Ashish Naithani J.

3. The Applicant contends that she had no knowledge of the said complaint or the summoning order and only learnt of the proceedings in August 2019 upon receipt of information regarding the issuance of non- bailable warrants. She then obtained the relevant documents and has now approached this Court to quash the entire proceedings.

Shri Sandeep Kothari, learned counsel appearing for Applicant, submitted that the impugned proceedings are a gross abuse of the process of law and are liable to be quashed. He submitted that the cheque in question was neither issued nor signed by the Applicant, and it has been misused by Respondent No. 2, who was a close family friend and a regular visitor to the office premises of M/s Maa Kali Enterprises, the partnership firm with which the Applicant is associated. It is urged that the signature on the cheque is forged and the instrument has been misappropriated in collusion and with mala fide intent.

5. Learned counsel further contended that the cheque was not drawn in the Applicant’s capacity but from the account of M/s Maa Kali Enterprises, a registered partnership firm. The Applicant, it is argued, is only one of the partners, and the firm itself is a separate legal entity. However, the complaint does not contain any averment that the Applicant was responsible for the day-to-day affairs of the firm, nor does it disclose compliance with the requirements of Section 141 of the Negotiable Instruments Act. The learned Magistrate, it is submitted, also failed to record any satisfaction in this regard while issuing the summoning order. The Applicant's prosecution is legally unsustainable without such mandatory pleading and satisfaction.

6. It is also contended that the cheque is invalid and unenforceable. According to the Applicant, the face of the cheque reveals that it was valid only for a sum of ₹50,00,000 at a non-home branch, whereas the amount allegedly drawn was ₹95,00,000. Criminal Misc. Application No.1780 of 2019, Rita Pant Vs State of Uttarakhand and Anr - 2 Ashish Naithani J.

7. Therefore, even assuming the cheque had been issued, it could not have been legally acted upon. No amount was ever transferred to the Applicant or M/s Maa Kali Enterprises from Respondent No. 2, and there is no documentary evidence on record, such as receipts, ledger entries, or audit findings, suggesting that any such transaction took place. In these circumstances, the assertion that the cheque was issued to discharge a legally enforceable debt is baseless.

8. Reliance is placed by learned counsel on the judgment of the Hon’ble Supreme Court in Himanshu v. B. Shivmurti and Another, (2019) 18 SCC 231, to argue that where a firm or company issues a cheque, the primary liability lies with that legal entity, and any partner or director can only be prosecuted if the statutory conditions under Section 141 are fulfilled. In the present case, neither has the firm been held liable, nor has there been any assertion or finding that the Applicant managed its affairs. In summoning the Applicant alone without meeting these statutory preconditions, the learned Magistrate has committed a jurisdictional error warranting interference.

9. It is lastly submitted that the criminal complaint is a device to harass the Applicant and that continuation of the proceedings would cause serious prejudice. The complaint the foundational ingredients required for prosecution under Section 138 of the Act, and the impugned summoning order deserves to be quashed.

10. ShriNarendra Bali, learned counsel appearing for Respondent No. 2, opposed the prayer and submitted that the application under Section 482 CrPC is misconceived and deserves to be rejected at the threshold. He submitted that the Applicant is not only a partner but the principal person in control of M/s Maa Kali Enterprises and that the cheque was issued by her, bearing her signature, to repaythe amount lawfully advanced by the complainant. The assertion that the cheque was forged Criminal Misc. Application No.1780 of 2019, Rita Pant Vs State of Uttarakhand and Anr - 3 Ashish Naithani J. is an afterthought, bereft of supporting material, and cannot be gone into in a quashing proceeding.

11. It was further submitted that the cheque was issued against a real and subsisting debt, and the complaint narrates in detail circumstances under which the loan of ₹95,00,000 was advanced and the cheque was tendered. The defence taken by the Applicant regarding forgery, want of liability, and the invalidity of the cheque are all matters that involve factual controversy and can be adjudicated only during the course of the trial. Such disputed questions of fact, learned counsel argued, cannot be examined under the limited jurisdiction of Section 482 CrPC.

12. Learned counsel also argued that a proprietorship concern has no separate legal existence apart from its proprietor. Hence, the Applicant, the controlling person of M/s Maa Kali Enterprises, cannot disown liability because it is a separate entity. The summoning order passed by the learned Magistrate is supported by the material placed before the Court and reflects due application of mind. It is not a case where the order can be said to suffer from legal infirmity so as to warrant interference at the threshold.

13. In view of the foregoing submissions, learned counsel prayed for dismissal of the application.

14. 15. Heard learned counsel for the Parties and perused the records. The principal ground urged by learned Counsel for the Applicant is that the Applicant did not sign the cheque in question and has been misused by the complainant, who was a close family acquaintance and a regular visitor to the Applicant’s premises. It is the specific case of the Applicant that the cheque pertains to the account of M/s Maa Kali Enterprises, a partnership firm, and that she neither issued the cheque in her individual capacity nor had any legal liability to discharge. Criminal Misc. Application No.1780 of 2019, Rita Pant Vs State of Uttarakhand and Anr - 4 Ashish Naithani J.

16. It is also contended that the cheque itself was not a valid negotiable instrument since it was presented for an amount of ₹95,00,000, despite being restricted for use up to ₹50,00,000 at a non- home branch. In addition, it is urged that the complaint does not contain any averment as to the Applicant's role in managing the firm’s affairs. Hence, the mandatory requirements under Section 141 of the Negotiable Instruments Act, 1881, have not been met.

17. However, this Court finds that these contentions, while weighty, are inextricably linked to factual proof and evidentiary appreciation. Whether or not the cheque bears the signature of the Applicant, whether it was issued voluntarily or misused, whether there existed a legally enforceable debt, and whether the statutory preconditions under Sections 138 and 141 of the Act have been satisfied, are all questions that require the parties to lead evidence. These issues cannot be determined conclusively in proceedings under Section 482 CrPC, which are limited in scope and intended only to prevent abuse of process or to secure the ends of justice in exceptional cases.

18. It is evident from the complaint that the Respondent No. 2 has alleged that he advanced a loan of ₹95,00,000 to the Applicant in view of his longstanding association with her family and business activities. It is further alleged that in discharge of the said liability, the Applicant issued a cheque drawn on the State Bank of India, which was returned unpaid upon presentation.

19. Further, a statutory notice was served, and upon failure of the drawer to make payment within the prescribed time, the complaint came to be filed. Along with the complaint, copies of the dishonoured cheque, the bank return memo, and the legal notice have been annexed. After considering the material on record, the learned Magistrate found prima facie satisfaction that an offence under Section 138 of the Act was disclosed and accordingly issued process. Criminal Misc. Application No.1780 of 2019, Rita Pant Vs State of Uttarakhand and Anr - 5 Ashish Naithani J.

20. The Applicant's assertion that she did not know of the proceedings until issuance of a non-bailable warrant also does not advance her case. The records indicate that notice under Section 138 was issued and stated to have been served. Whether the Applicant deliberately avoided service or whether there was any procedural irregularity in the issuance of summons is again a matter that must be raised before the trial court in appropriate proceedings, and does not render the complaint non-maintainable.

21. Furthermore, the judgment in Himanshu v. B. Shivmurti and Another, (2019) 18 SCC 231, cited by learned Counsel for the Applicant, was rendered in the context of a company where neither the company nor the drawer had been arrayed as an accused. The present case stands on a different factual footing. The complaint alleges issuance of a cheque, its dishonour, notice, and failure to repay, which, taken at face value, make out the ingredients of the offence.

22. It is well settled that the jurisdiction under Section 482 CrPC is to be exercised sparingly, with great caution, and only where the complaint is ex facie barred by law or does not disclose the commission of any offence. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Hon’ble Supreme Court delineated illustrative categories where quashing may be appropriate. The present case, however, does not fall within any of those categories. The Applicant’s defences, whether meritorious or not, require adjudication on evidence and cannot be summarily determined under the limited jurisdiction conferred by Section 482 CrPC.

23. The Hon’ble Supreme Court in Kamala v. Vidhyadharan, (2007) 5 SCC 264, and in Sonu v. State of Haryana, (2021) 1 SCC 94, reiterated that where the ingredients of the offence are prima facie made out, the High Court ought not to interfere merely because the accused has raised a plausible defence. Criminal Misc. Application No.1780 of 2019, Rita Pant Vs State of Uttarakhand and Anr - 6 Ashish Naithani J. ORDER In view of the foregoing discussion, including the materials on record and the legal position governing exercise of jurisdiction under Section 482 CrPC, this Court is of the considered opinion,that the complaint and the summoning order passed by the learned Magistrate do not suffer from any patent illegality or perversity warranting interference at this stage. Accordingly, the Criminal Miscellaneous Application No. 1780 of 2019, filed by the Applicant Smt. Rita Pant is hereby dismissed. (Ashish Naithani J.) Dated:12.06.2025 NR/ NITESH RAWAT DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=bea38a9cb7bca67cc3988ad 93d563d95c70eb77fa0ea4758e401cf 436bdce9fb, postalCode=263001, st=UTTARAKHAND, serialNumber=F691686B3C447434E 89897BCDC0B6567DCE4B7108B324F FED3C8A159F3BDD03C, cn=NITESH RAWAT Criminal Misc. Application No.1780 of 2019, Rita Pant Vs State of Uttarakhand and Anr - 7 Ashish Naithani J.