Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 833 (GAU)

Monosij Roy v. Hitendra Das

2008-12-02

ANIMA HAZARIKA

body2008
JUDGMENT Anima Hazarika, J. 1. Invoking power under Section 397 / 401 read with Section 482 of the Code of Criminal Procedure, 1973 (Code for short), the three Revision petitions have been filed by the Petitioner for quashing the proceedings of the case Nos. 779c/2003, 780c/2003 and 782c/2003 pending before the learned Judicial Magistrate, 1st Class, Guwahati. 2. Vide order dated 5.1.2004 a Single Bench of this Court directed that all the three revision petitions namely, Criminal Revision Nos. 2/2004, 5/2004 and 6/2004 be listed before one Bench for analogous hearing. Accordingly, these three revision petitions were listed together which are being heard and disposed of by this common judgment. 3. The facts which gave rise to the present petition are that the complainant (Respondent herein) Sri Hitendra Das had given a loan amounting to Rs. 6,76,000/- to the present Petitioner on 16.1.2003. To liquidate the said amount a cheque of Rs. 3,75,000/- was issued by the Petitioner in favour of the complainant on 16.1.2003. The second cheque of Rs. 1,75,000/- was issued on 24.1.2003 and third cheque of Rs. 1,20,000/- was issued on 25.1.2003. However, all these three cheques were dishonoured on the ground of "insufficient fund". Therefore, the Respondent filed three complaint cases under Sections 138 / 142 of the Negotiable Instrument Act., 1881 as amended by Banking Public Institutions Negotiable Instrument (amended) Act, 1988 (the Act for short). The three complaint cases so filed by the Respondent/complainant were numbered as 779c/03, 780c/03 and 782c/03. The cases were taken up by three different Courts of Judicial Magistrate, 1st Class, Kamrup, Guwahati. The learned Courts after examining the complainant under Section 200 of the Code found materials of Section 138 of the Code available and hence, while taking cognizance, the Court issued summons to the accused (Petitioner herein). On several dates the accused being not present in the Court, the learned Court issued non-bailable warrant of arrest (NBWA for short) against the accused Petitioner. These three revision petitions are therefore filed by the Petitioner for quashing of the criminal proceedings as indicated hereinabove. 4. Heard Mr. R.D. Lal, learned Counsel appearing for the Petitioner. Also heard Mr. K. Bhattacharjee, learned Counsel appearing for the Respondent No. 1 as well as Mr. D. Das, learned Addl. P.P., Assam. 5. The ground of attack as pleaded in the petition are manifold. 4. Heard Mr. R.D. Lal, learned Counsel appearing for the Petitioner. Also heard Mr. K. Bhattacharjee, learned Counsel appearing for the Respondent No. 1 as well as Mr. D. Das, learned Addl. P.P., Assam. 5. The ground of attack as pleaded in the petition are manifold. The grounds on which quashing is sought for, inter alia, are as follows: (i) The learned Magistrate erred in law as well as in fact in taking cognizance of the case without properly examining the fact. (ii) It is time barred proceeding. (iii) The cheque was not issued because of any debt or liability but because of brute force used by the Respondent complainant against the Petitioner. (iv) The Petitioner has already paid to the Respondent complainant a sum of Rs. 2,87,000/- before issuing summons to the Petitioner by the learned trial Court. 6. Referring to the aforesaid grounds, Mr. Lal has vehemently submitted that if the proceedings are allowed to continue, it would be abuse of the process of Court and to secure the ends of justice, it is a fit case for quashing the proceedings, Mr. Lal has further drawn the attention of the Court to the case of Manik Lodh v. State of Assam and Anr. reported in 2007 (3) GLT 207 : 2008 (1) GLR 804, wherein it has been held that when a part payment is received by the holder of the cheque towards the total amount for which the cheque stood issued, holder of the cheque cannot demand payment of the entire cheque amount and cannot launch prosecution against the drawer of the cheque on dishonour of such a cheque for insufficiency of funds. 7. Mr. Bhattacharjee, learned Counsel for the Respondent on the other hand has urged the following grounds in support of his contention: (i) The prayer of the Petitioner for quashing of the proceedings under Section482 of the Code is not maintainable, inasmuch as, the presumption available under Section 139 can be rebutted by the Petitioner only by adducing evidence. The Petitioner herein without availing that opportunity as provided under the Act has directly approached this Court by filing the instant revision petition. The Petitioner herein without availing that opportunity as provided under the Act has directly approached this Court by filing the instant revision petition. (ii) The criminal proceedings under Section 482 of the Code may not be quashed at the initial stage as it has been already held by the Apex Court in various decisions that the power of quashing a criminal proceeding should be exercised very sparingly and it is not justified on the part of the Court to embark upon the enquiry as to the reliability and genuineness of the allegations made in the FIR or the complaint. 8. Admittedly, complaint has been filed before the learned trial Court under Section 138 / 142 of the Code and the learned trial Court after going through the contents of the complaint, examined the complainant under Section 200 of the Code and on being satisfied that a prima facie case has been made out to proceed with the case, issued process as required under Section 204 of the Code registering a case under Section 138 / 142 of the Act and issued notice accordingly to the accused Petitioner. When the accused Petitioner failed to appear before the Court, the Court had to issue NBWA against him. The Petitioner thereafter, has filed these revision petitions for quashing of the criminal proceedings pending before the learned trial Court on the ground that it would be abuse of the process of Court if the proceedings are allowed to continue, more so, when no case is made out to proceed against the Petitioner. 9. Heard the learned Counsel for the parties at length and perused the materials available on record. The principles of law have been enunciated by the Apex Court in a series of decisions relating to the exercise of inherent powers under Section 482 of the Code. In the leading case of State of Haryana and Ors. v. Bhajanlal and Ors. reported in 1992 Supp. (1) SCC 335 the Apex Court at para 102 has observed as follows: 102. In the leading case of State of Haryana and Ors. v. Bhajanlal and Ors. reported in 1992 Supp. (1) SCC 335 the Apex Court at para 102 has observed as follows: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (i) Where the allegations made in the first information report or the complaint, even if they are taken at the face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (ii) 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. (iii) 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. (iv) 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 contemn plated under Section155(2) of the Code. (v) 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. (v) 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. (vi) 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 concerned Act, providing efficacious redress for the grievance of the aggrieved party. (vii) Where a criminal proceeding is manifestly attended with malafide 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. 10. The Apex Court has further cautioned to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases and that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. The Court also cannot inquire whether the allegations in the complaint are likely to be established or not. 11. The decision in State of Haryana v. Bhajanlal (supra) has further been approved by the Apex Court in a subsequent decision reported in AIR 2004 SC 555 , M. Narayandas v. State of Karnataka, wherein the Apex Court had set aside the order of High Court quashing complaint, by holding that when offence is disclosed by the FIR, High Court must not interfere with the investigation and should allow police to complete investigation. 12. Keeping the above mentioned principle in mind, this Court is to see as to whether the trial Court has committed any wrong while proceeding with the complaint case. 12. Keeping the above mentioned principle in mind, this Court is to see as to whether the trial Court has committed any wrong while proceeding with the complaint case. Upon perusal of the record it reveals that the trial Court has proceeded on the complaint and the statement of the complainant recorded in support of the same has, in fact, disclosed the essential ingredients of the offence which is alleged against the accused and on being prima facie satisfied that a case has been made out to proceed against the accused Petitioner, the Court proceeded with the case and issued summons to the Petitioner. 13. The case referred to and reported in (2008) 1 GLR 804 (supra) would go to show that the Court while dealing with the provisions of Section 138 and 139 of the Negotiable Instruments Act vis-a-vis Section 114 of the Evidence Act has held that the holder of the cheque receiving part payment towards the total amount for which the cheque was issued cannot demand payment of the entire cheque amount and cannot launch prosecution against the drawer of the cheque on dishonour of such a cheque for insufficiency of funds. There is no dispute to such proposition. In the case referred (supra) it would appear that a cheque of Rs. 75,000/- was issued on 11.5.1996 in favour of the complainant which was bounced back for insufficiency of funds. Thereafter the accused issued a cheque of Rs. 20,000/- on 10.7.1996 which was encashed and acknowledged by the complainant. Thereafter the cheque of Rs. 75,000/- was presented on 20.8.1996 and on 17.9.1996 and got the same dishonoured resulting in launching the prosecution which resulted in conviction and sentence. The Court while dealing with the case has further noticed that the complainant admitted in his cross-examination that he had received a cheque from the accused for Rs. 20,000/- as part payment and got the same encashed. Therefore the complainant would not be entitled to prosecute the accused for no cheque for Rs. 55,000/- was issued by the accused and no notice demanding payment of the remaining amount of Rs. 55,000/- was made as required under the law. But the complainant presented the cheque of Rs. 75,000/- demanding the amount though part payment of Rs. 20,000/- was paid and encashed. 55,000/- was issued by the accused and no notice demanding payment of the remaining amount of Rs. 55,000/- was made as required under the law. But the complainant presented the cheque of Rs. 75,000/- demanding the amount though part payment of Rs. 20,000/- was paid and encashed. In such a situation the Court has rightly held that when part payment is made and accepted by the complainant, he cannot launch the prosecution for the entire amount of Rs. 75,000/- which is not the case in hand. 14. In the instant case, admittedly the Petitioner had issued the cheque on 16.1.2003, 24.1.2003 and 25.1.2003 amounting to Rs. 3,75,000/-, 1,75,000/- and 1,20,000/- respectively and it is also brought on record that the Petitioner has paid Rs. 75,000/- on 16.1.2003, Rs. 70,000/- on 17.1.2003 and Rs. 20,000/- on 25.1.2003 and thereby the total amount of Rs. 1,65,000/- in cash had been paid. But it could not be ascertained against which cheque accused made the cash payment as aforesaid. The prosecution has been launched for dishonouring three cheques for insufficiency of funds. The trial has yet to be started wherein the Petitioner would get a chance to demolish the case of the complainant. In absence of evidence this Court thinks it fit not to quash the criminal proceedings at the initial stage in the facts and circumstances of the case. 15. In this regard the decision referred to by Mr. Bhattacharjee in State Farm Corporation of India Ltd. v. Nijjer Agro Foods Ltd. and Ors. reported in 3 (2007) BC 513 (SC), is relevant, wherein the Hon'ble Apex Court at para 2 held as thus: Though, at this stage, we are not going into the merits, but we may only note that the subject matter of the two complaints are four cheques in all amounting to Rs. 7676,55,917.47 ps. According to the Respondents, they made payment of Rs. 40 lacs by six bank drafts after the issue of some of the cheques. Whether the said payment has been made or it is towards some of the amounts covered by the cheques are all the questions which can be decided only at the trial of the complaint cases under Section 138 of the Negotiable Instruments Act and could not have been made the basis of allowing the revision petition. The approach of the High Court is clearly erroneous. 16. The approach of the High Court is clearly erroneous. 16. In Electronic Trade and Technology Development Corporation Ltd. v. Indian Technologists and Engineers reported in (1996) 2 SCC 739 , the Apex Court has observed that the object of bringing Section 138 in the Act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of banking operations and ensure credibility in transacting business through cheques. The Negotiable Instruments Act has undergone a change by amendment Act, 2002 (55 of 2002) whereby punishment and other provisions of the Act have also been amended to promote the efficacy of banking transactions/operations and ensure credibility in transacting business through cheques. 17. In Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and Ors. reported in (2001) 6 SCC 463 the Hon'ble Apex Court at para 3 observed as thus: 3. The Act was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instruments is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily possible from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present day world, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the Act, the legislature has, in its wisdom, thought it proper to make such provisions in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. To achieve the objectives of the Act, the legislature has, in its wisdom, thought it proper to make such provisions in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country. 18. In the present case, the learned Magistrate has found that the complaint has disclosed a prima facie case to proceed against the accused persons. This Court therefore considering the observations made in the decisions referred to hereinabove viz. i) State of Haryana (supra), ii) M. Narayandas (supra) and iii) State Farm (supra) and keeping in view the provisions of the Act and the observations made by the Apex Court in Electronic Trade and Technology (supra) and Dalmia Cement (supra) do not incline to quash the criminal proceedings initiated against the Petitioner in exercise of inherent power under Section 482 of the Code, keeping in mind the caution expressed by the Apex Court as indicated above. 19. In the result, the criminal revision petitions taken on the file of this Court are dismissed and the stay orders passed earlier stand vacated. Registry is directed to send down the records immediately to enable the learned trial Court to proceed with the case in accordance with law.