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2006 DIGILAW 55 (UTT)

Naveen Prakash Pandey v. State of Uttaranchal

2006-02-24

J.C.S.RAWAT

body2006
JUDGMENT Hon'ble J.C.S. Rawat, J.- The present petition u/s 482 Cr.p.c. has been filed to set aside the case No. 2544 of 2003 (111/2004) Vikas Jindal vs. Naveen Prakash Pandey u/s 138 Negotiable instrument Act. 2. Brief facts for the disposal of this petition are that it is alleged that a cheque of Rs. 90,000/- was given by the accused/applicant to the complainant-Respondent No.2 and the said cheque was bounced and thereafter notice was given and the amount as demanded in the notice was not paid; to the respondent No.2. Thereafter a complaint was riled u/s 138 of N.I. Act. The cognizance was taken. 3. Feeling aggrieved by the said order and the complaint, the present petition has been filed. 4. Learned counsel for the petitioner contended that in order to attract the penal provisions for the bouncing of a cheque u/s 138 N.I. Act, it is mandatory that dishonoured cheque should have been issued in discharge, wholly or in part, of any debt or other liability of the drawer to the payee the explanation of the section 138 N.I. Act define the expression debt or other liabilities as a legally enforceable debt or other liability mere issuance of cheque under force and threats and its dishonour would, not fulfill the requirement needed for making out or an offence under section 138 N.I. Act. He has further contended that the debt or liability as a legally enforceable debt must be proved by the complaint. It was further contended that the applicant was put in fear of injury and thereby dishonestly the applicant was put in fear to deliver the alleged cheque as such he committed the offence of extortion under the Indian Panel Code. Learned counsel for the applicant further contended that he had given complaint to the S.S.P. as well as he sent a note to the bank. A complaint u/s 138 N.I. Act has been filed and the complainant has alleged in his complaint as well as in his statement recorded u/s 200 and 202 Cr.P.C. that the cheque was bounced and there was a valid liability to pay t he debt. The evidence or the prosecution at this stage is prima-facie establish the liability to pay the draft as provided u/s 138 N.I. Act. The applicant has submitted a theory to put him to fear to deliver the said cheque. The evidence or the prosecution at this stage is prima-facie establish the liability to pay the draft as provided u/s 138 N.I. Act. The applicant has submitted a theory to put him to fear to deliver the said cheque. As a matter or fact, the court has to believe as to whether the version of the applicant is true or the version of the prosecution is correct. The petitioner has taken a plea which he could have taken at trial court. This court while exercising the jurisdiction u/s 482 Cr.P.C. is not competent to decide the controversy which is to be decided by the trial Court after taking' the evidence. 5. The power or this Court under section 482 Cr.P.C. is very limited, it the allegations set out in the complaint do not constitute the offence or which cognizance has been taken by the Magistrate, it is open to this Court to quash the same in exercise of the inherent powers under section 482 Cr.P.C. It is not, however, necessary that there should be meticulous analysis of the case by the Magistrate to rind out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration or the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material 10 show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by this Court. The High Court would not ordinarily embark upon an enquiry whether he evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is function of the trial court. {See Stale or Karnataka v. M. Devendrappn & another 2002 (2) SBR p/151}. 6. It has been held in M. Narayandas vs. State of Karnataka 2004 Cr.LJ, p/822 that it is settled law that the power to quash a criminal proceeding must be exercised very sparingly and with circumspection, it must be exercised in the rarest or rare cases. It is also settled law that the court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise or the allegations made in the FIR or the complaint. It is also settled law that the court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise or the allegations made in the FIR or the complaint. The Court also cannot inquire whether the allegations in the complaint arc likely to be established or not. 7. It is not permissible for the High court to look into materials, the acceptability or which is essentially a matter or trial. While exercising jurisdiction under section 4S2 Cr.P.C., it is not possible for this Court to act as if it is a trial court. {State of M.P. Vs. Awadh Kishore Gupta and others SCC (Cri) 2004 p/353}. 8. In view of the above discussion. I am or the view that the petition devoids or merit and is liable to be dismissed. Accordingly, the same dismissed.