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2011 DIGILAW 486 (GAU)

Ranjit Kr. Pegu v. Apurba Choudhury

2011-06-04

A.C.UPADHYAY

body2011
ORDER A.C. Upadhyay, J. 1. Heard Mr. M. Talukdar, learned Counsel appearing for the Petitioner and Mr. A.K. Jain, learned Counsel appearing for the Respondent. 2. This petition is filed under Section 482 of the Code of Criminal Procedure read with Article 227of the Constitution of India by the Petitioner praying for quashing the proceeding in the complaint case No. 8658 (c)/2007, pending in the Court of Judicial Magistrate, 1st Class, Guwahati, District-Kamrup, Assam. 3. Facts, leading to filing of this petition, reveals that the complainant-Opp. Party lodged a complaint under Section 138 of Negotiable Instruments Act, 1881 alleging therein that the accused Petitioner had taken up a sum of Rs. 2,50,000/- from the complainant-Opp. Party and in discharge of his liability, the accused Petitioner issued a cheque bearing No. 0875185 dated 23.10.07, for a sum of Rs. 2,50,000/- drawn on State Bank of India, Dispur Branch, Guwahati in favour of the complainant-Opp. Party. 4. The cheque was issued by the accused Petitioner from the account operated by him in the State Bank of India, Dispur Branch, Guwahati. The complainant on receipt of the said cheque deposited it in his bank account in the State Bank of India, A.T. Road Branch, Guwahati. The cheque was sent by the State Bank of India, A.T. Road Branch to State Bank of India, Dispur Branch for clearance. However, the State Bank of India, Dispur Branch dishonoured the cheque for "insufficient fund" in the account of the accused Petitioner with the memo dated 27.10.2007 of the State Bank of India. The memo was received by the complainant on 29.10.2007. The complainant on receipt of the dishonoured cheque together with the memo from the State Bank of India issued a demand notice under Section 138 of Negotiable Instruments Act, 1881 to the accused through his Advocate by registered post with A.D. The complainant stated that the said notice was duly served on the accused, who also acknowledged the receipt of the same. However, the accused neither responded to the notice nor expressed any tentative date for payment of the amount of the dishonoured cheque. Since the accused Petitioner failed to pay the amount on demand, the complainant Opp. Party filed a complaint case under Section 138 of the Negotiable Instruments Act, 1881 before the trial Court. However, the accused neither responded to the notice nor expressed any tentative date for payment of the amount of the dishonoured cheque. Since the accused Petitioner failed to pay the amount on demand, the complainant Opp. Party filed a complaint case under Section 138 of the Negotiable Instruments Act, 1881 before the trial Court. The trial Court took cognizance of the offence under Section 138 of the N.I Act and issued process for appearance of the accused Petitioner. 5. The accused Petitioner appeared before the trial Court and filed a petition praying for his discharge from the case on the ground that the notice under Section 138 of the Negotiable Instruments Act, 1881 was not received by the accused Petitioner and that the cheque in question was not voluntarily given by the accused, rather, it was forcefully snatched away from the accused Petitioner by the complainant-Opp. Party. 6. As a matter of fact, this Court cannot enter into the realm of recording evidence and/or appreciating the merit of the case at this stage of the proceeding. This Court is required to examine whether the allegation made in the first information report or the complaint even if they are taken at their face value and accepted on their entirety any prima facie offence is made out or not. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by the Hon'ble Supreme Court in State of Haryana and Ors. v. Bhajanlal and Ors. AIR 1992 SC 604 , which laid down the scope of interference by the High Court in matters of quashing FIR or complaint as follows: 102. v. Bhajanlal and Ors. AIR 1992 SC 604 , which laid down the scope of interference by the High Court in matters of quashing FIR or complaint 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 Section 482 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. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) 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 Section155(2) of the Code. (3) 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. (4) 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 contemplated under Section 155(2) of the Code. (5) 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. (5) 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. (6) 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. (7) Where a criminal proceeding is manifestly attended with mala fide 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. 7. In yet another decision of the Hon'ble Supreme Court reported in India Oil Corpn. v. NEPC Indian Ltd. (2006) 6 SCC 736 , it was held as follows: 12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few-Madavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angrel, State of Haryana v. Bhajan Lal 2, Rupan Deol Bajaj v. Kanwar Pal Singh Gill 3, Central Bureau of Investigation v. Duncans Agro Industries Ltd. 4, State of Bihar v. Rajendra Agarwalla 5, Rajesh Bajaj v. State NCT of Delhi 6, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. 7, Hridaya Ranjan Prasad Verma v. State of Bihari 8, M. Krishnan v. Vijay Singh 9 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque 10. The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For the purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. For the purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. 8. On careful perusal of the materials on record, it transpires that the prima facie offence has been made out against the Petitioner, which attracts the ingredients of the offence under Section 138of Negotiable Instruments Act, 1881. Further, this is not the stage where this Court can make an enquiry as to the reliability and sustainability of accusation on a reasonable appreciation of such evidence. Further, this is not the stage where this Court can make an enquiry as to the reliability and sustainability of accusation on a reasonable appreciation of such evidence. The proposition and contention made by the Petitioner regarding non-service of demand notice upon him by the complainant and snatching away of the cheque from his possession is within the realm of the trial Court. It would not be fair at this juncture to assume the role of a trial Court and embark upon an enquiry, as to reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence. 9. Therefore, the proposition advanced during argument by the learned Counsel for the Petitioner cannot be accepted at this stage. On careful perusal of the materials on record and on consideration of the allegation made against the Petitioner and in the light of the statement made against the accused Petitioner, it appears that the ingredients of offence under Section 138 of Negotiable Instruments Act, 1881 are disclosed and there is No. material to show that the complaints is mala fide, frivolous or vexatious and barred under any law for the time being in force. 10. Therefore, I see No. grounds to interfere in this matter to discharge the accused by quashing the preceding initiated against him. Accordingly, the petition filed by the Petitioner, being devoid of merit, stands dismissed. 11. Stay order, if any, stands vacated. Petition dismissed.