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2007 DIGILAW 493 (CAL)

PALTU SHAW v. KANHAILAL GUPTA

2007-07-05

ARUNABHA BASU

body2007
( 1 ) THE application under Section 482 of the Code of Criminal Procedure is filed by the petitioner praying for an order to quash the proceeding, in connection with case, bearing No. 790 of 2003 pending before the Court of learned 5th judicial Magistrate, Sealdah. ( 2 ) ON scrutiny of the application filed under Section 482 of the Code of Criminal Procedure, it appears that the main contention of the petitioner, that on his failure to arrange guarantor while obtaining loan from opposite party No. 1, he was compelled to leave blank cheque signed by him in the custody of opposite party No. 1. ( 3 ) IT is also the contention of the petitioner that he was made to sign on blank papers without knowing and understanding the nature and contents of the said documents. It is also the contention of the petitioner that he has already paid the entire loan amount and as such opposite party No. 1 instituted the case under Section 138 of Negotiable Instruments Act (hereinafter called the Act), only to harass the petitioner. ( 4 ) IT is also the contention of the petitioner that opposite party has also instituted another case under Sections 420,406 and 120b, I. P. C. against the petitioner and his brother, only to harass the petitioner. ( 5 ) A copy of the petition of complaint filed before the Court of learned a. C. J. M. , Sealdah is annexed alongwith the application as annexure P-7. ( 6 ) ON scrutiny of the complaint it appears that the complainant lodged complaint before the Court against the petitioner for commission of offence punishable under Section 138 of the Act. ( 7 ) IN the said complaint it is averred that the parties entered into higher purchase agreement in respect of vehicle being No. WMK 254 and in connection with the said transaction the complainant was entitled to get a sum of Rs. 2,81,000. 00 from the petitioner and in order to discharge the said obligation petitioner issued A/c Payee cheque bearing No. 111141 dated 2. 9. 2003 amounting to Rs. 2,81,000. 00. However, when the said cheque was presented for encashment, the same was returned by the Dank with the note 'insufficient fund'. 2,81,000. 00 from the petitioner and in order to discharge the said obligation petitioner issued A/c Payee cheque bearing No. 111141 dated 2. 9. 2003 amounting to Rs. 2,81,000. 00. However, when the said cheque was presented for encashment, the same was returned by the Dank with the note 'insufficient fund'. ( 8 ) IT is also stated in the petition of complaint that a notice was issued demanding payment of the said amount, but even after receiving the said notice, the amount was not disbursed by the petitioner and as such the petitioner is alleged to have committed an offence punishable under Section 138 of the act. Further, it appears from the recital in the petition of complaint that alongwith the petition of complaint, an application for condonation of delay in instituting the case was also filed before the learned Court below. ( 9 ) IN his application under Section 482 of the Code of Criminal procedure, it is stated that learned Magistrate took cognizance for the offence under Section 138 of the act and Issued summons against the petitioner. It is also specifically stated in the application under Section 482 of the Code of criminal Procedure that the said complaint was barred by limitation as is evident from the recital in the petition of the complaint which is annexed as Annexure p-7 as indicated above. ( 10 ) CHEQUE when issued for the discharge of any debt or other liability and when the same is dishonoured due to Insufficiency of fund or for other reasons attract penal Section as provided under Section 138 of the Act. ( 11 ) THE said Section 138 is reproduced below :-138. Dishonour of cheque for insufficiency, etc. ( 10 ) CHEQUE when issued for the discharge of any debt or other liability and when the same is dishonoured due to Insufficiency of fund or for other reasons attract penal Section as provided under Section 138 of the Act. ( 11 ) THE said Section 138 is reproduced below :-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 falls 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. Explanation.- For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability. ( 12 ) IN order to attract Section 138, the following ingredients to constitute the offence must be established: 1. Explanation.- For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability. ( 12 ) IN order to attract Section 138, the following ingredients to constitute the offence must be established: 1. Presentation of cheque to the bank either within the period of six months from the date on which it is drawn or within the period of its validity. 2. Notice of demand for payment of amount by the payee within a period of thirty days from the date of receipt of information by him from the bank after the cheque is returned unpaid. 3. Failure on the part of the drawer to make payment of amount within a period of fifteen days from the date of receipt of the said notice. ( 13 ) IT may be pointed out in this context that in order to constitute offence within the meaning of Section 138 of the Act, all the three ingredients as mentioned above must be present. In other words the offence under Section 138 of the Act is not complete merely when the cheque presented before the bank for encashment is dishonoured. ( 14 ) THE law has given an opportunity to the person issuing the cheque to make good his obligation and as such notice demanding payment is one of the sine qua non to constitute the offence. The demand notice is issued so that the defaulter can fulfil his obligation within the stipulated period as prescribed under law and only when he fails to discharge his obligation by paying the amount for which cheque was originally issued, then only the offence is said to have been committed. ( 15 ) SO far as the present case is concerned, it appears from the scrutiny of the petition of the complaint that all the ingredients to constitute the offence is mentioned in the petition of complaint. The petitioner has moved this Court to exercise its extraordinary jurisdiction as vested under Section 482 of the code of Criminal Procedure. The question now arises whether in view of the recital in the petition of complaint and on the basis of the averment as mentioned in the application under Section 482 of the Code of Criminal Procedure, it will be a fit case to exercise the inherent jurisdiction of this Court vested under section 482 of the Code of Criminal Procedure. The question now arises whether in view of the recital in the petition of complaint and on the basis of the averment as mentioned in the application under Section 482 of the Code of Criminal Procedure, it will be a fit case to exercise the inherent jurisdiction of this Court vested under section 482 of the Code of Criminal Procedure. The law in this point is more or less well settled as pronounced by the Hon'ble Supreme Court on number of occasions. However, for the purpose of present discussion, it will be appropriate to refer to the decision of the Hon'ble Supreme Court In the case of Minu kumari and Anr. v. State of Bihar and Ors. reported in (2006)4 Supreme Court cases 359 : (2006)2 C Cr LR (SC) 11. ( 16 ) HON'ble Apex Court considering the scope of Section 482 of the code held at para 19 on the aforesaid judgment:-19. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court and (ill) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High courts. All Courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedlt, concedere videtur Id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist ). While exercising powers under the section, the Court does not function as a Court of appeal or revision. While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent Jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceedings if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. ( 17 ) THE Hon'ble Apex Court also held that the Court must be careful to see that its decision in exercise of this power is based on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. Hon'ble Supreme Court also issued a word of caution that the High Court being the highest Court of the State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. ( 18 ) SO far as the present case is concerned, the various pleas raised by the petitioner in his application under Section 482 of the Code of Criminal procedure cannot be decided only on consideration of the documents filed alongwith the application. In other words the specific plea raised by the petitioner that he left blank cheques in the custody of the opposite party and he was made to sign on blank documents must be established by the party raising the plea at the time of evidence. In other words the specific plea raised by the petitioner that he left blank cheques in the custody of the opposite party and he was made to sign on blank documents must be established by the party raising the plea at the time of evidence. There is no evidence in support of the said contention of the petitioner and unless the same is established or placed before the Court at the time of trial, it will be pre-mature to accept the plea while considering an application under Section 482 of the Code. Such decision on the part of this Court without any sufficient material before him will be not only pre-mature but will be against the very principle to exercise the inherent jurisdiction as held by the Hon'ble Supreme Court and referred to above. ( 19 ) IN addition to what has been stated above, it will be appropriate to refer Section 139 of the Act, which runs as follows :- "139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. " ( 20 ) IT is evident that the law has prescribed that statutory presumption shall be raised about the cheque and such presumption will be available to the complainant unless the same is rebutted by placing materials for necessary consideration, by the Court conducting the trial. ( 21 ) IN view of the presumption available to the complaint, it cannot be readily accepted that the cheque issued by the petitioner was not issued to discharge the obligation within the meaning of Section 138 of the Act. ( 22 ) IT may also be pointed out in this context that Section 140 of the act also stipulates restriction about certain plea being raised in defence in connection with any prosecution instituted under Section 138 of the Act. ( 23 ) IN this view of the matter, it is clear that this is not a fit case where the extraordinary jurisdiction of this Court in exercise of its power under Section 482 of the Code shall be exercised. ( 23 ) IN this view of the matter, it is clear that this is not a fit case where the extraordinary jurisdiction of this Court in exercise of its power under Section 482 of the Code shall be exercised. In my view, all the points raised by the petitioner can only be decided at the stage of trial on consideration of evidence that may be adduced by the respective parties. ( 24 ) ON consideration of the entire matter and after hearing the submission of the respective parties and in view of the settled legal position as highlighted above, I am of the view that it is not a fit case for quashing the proceeding, now pending before the Court of learned Magistrate and as such the application under Section 482 of the Code of Criminal procedure being devoid of any merit, is dismissed without any order as to costs. ( 25 ) I make it absolutely clear that whatever observation is recorded cannot have any bearing in connection with the trial now pending before the learned Magistrate and the learned Magistrate is directed to proceed with the case without being any way influenced by any of the observation as recorded in the order. The case Is pending for quite some time as such the learned magistrate is advised to proceed with the trial preferably on day-to-day basis and in no case should grant unnecessary adjournment to any of the parties. ( 26 ) INTERIM order, if any passed, stands vacated. ( 27 ) CRIMINAL Section is directed to send a copy of the order to learned judicial Magistrate, 5th Court, Sealdah by Special Messenger.