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2016 DIGILAW 877 (HP)

Shyam Lal v. Suresh Kumar

2016-05-20

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The petitioner has invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashing the order dated 5.8.2013 and 7.12.2013 passed by learned Judicial Magistrate 1st Class, Joginder Nagar, District Mandi, H.P. 2. The petitioner is being prosecuted under Section 138 of the Negotiable Instruments Act, 1881 (for short Act), though he claims that the cheque in question had been lost and for which he had lodged a complaint with the Police Station at Joginder Nagar on 25.10.2011 and thereafter had closed his account on or about 11.5.2012, whereas the cheque in question came to be presented and dishonoured much later in July, 2012 and this according to him is a clear cut case where the process of the Court is being abused. 3. On 5.8.2013 the learned Magistrate after hearing the complainant and perusing the record, recorded its satisfaction regarding existence of sufficient grounds to proceed against the petitioner for offence under Section 138 of the Act and accordingly, issued summons for 25.9.2013. The order dated 5.8.2013 reads as under: “An exemption application filed on behalf of the complainant, which for the reasons stated therein is considered and allowed for today. Heard. After hearing the complainant and perusing the record, it is apparent that the cheque was presented within time and due compliance of procedure envisaged under Section 138 of the N.I. Act has been made. From the evidence on record, there exist sufficient grounds to proceed against the accused for the offence under Section 138 of N.I. Act. Further, this court deem it fit to try the present trial by adopting the summon procedure and find it undesirable to try the case summarily in view of the allegations. Let accused be got served through summon for 25.09.2013.” 4. On 25.9.2013 bail bonds were furnished by the petitioner and the matter was ordered to be put up for consideration on charge on 7.12.2013. On that date, the notice of accusation was put to the petitioner to which he pleaded not guilty and claimed trial. The order dated 7.12.2013 reads thus: “An exemption application filed on behalf of the complainant, which for the reasons stated therein is considered and allowed for today. Notice of accusation put to the accused under Section 138 of N.I. Act. He pleaded not guilty and claimed trial. The order dated 7.12.2013 reads thus: “An exemption application filed on behalf of the complainant, which for the reasons stated therein is considered and allowed for today. Notice of accusation put to the accused under Section 138 of N.I. Act. He pleaded not guilty and claimed trial. Be put up for CWs on taking steps within 5 days for 07.02.2014.” 5. The complainant/respondent while opposing the claim of the petitioner has filed his reply wherein it is averred that the petition as filed is not maintainable as there are disputed questions of fact which can only be proved during the trial, therefore, the petition ought to be dismissed. I have heard learned counsel for the parties and gone through the records of the case carefully. 6. From the averments made in the petition, it is absolutely clear that what the petitioner is seeking is factual defence regarding his cheque being lost. Now, the question arises whether the cheque was lost or not and the same is a question of fact which can be determined only by the learned trial Magistrate after recording evidence of the parties. This Court, therefore, would ordinarily not express its view on the disputed questions of fact in a petition under Section 482 Cr.P.C. to come to a conclusion that offence is not made out. The High Court would only go into the factual aspects of the matter when the same are admitted by the parties. 7. Similar issue came up recently before the Hon’ble Supreme Court in HMT Watches Ltd. vs. M.A. Abida and another 2015 AIR SCW 1949, wherein it was held as under: “10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. 11. In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others, (2008) 13 SCC 678 , this Court has made following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure:- "17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter. xxx xxx xxx 22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.' 12. In Rallis India Limited v. Poduru Vidya Bhushan and others, (2011) 13 SCC 88 , this Court expressed its views on this point as under:- "12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm." In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court.” 8. No other point was urged. 9. In view of the aforesaid discussion, I find no merit in this petition as no case for quashing of either the proceedings or the orders passed by learned Magistrate on 5.8.2013 and 7.12.2013 are made out. Consequently, the present petition is dismissed, so also the pending application. Interim order dated 14.8.2015 is vacated. 10. As the complaint is pending trial for more than three years, it is expected that the learned trial Magistrate shall make all endeavour to decide the same as expeditiously as possible and in no event later than 31st December, 2016.