Research › Search › Judgment

Uttarakhand High Court · body

2017 DIGILAW 233 (UTT)

MOHD. ANWAR v. SUBHASH CHANDRA KAINTHOLA

2017-04-11

U.C.DHYANI

body2017
JUDGMENT U.C. Dhyani, J.(Oral) By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the summoning order dated 24.08.2015 (Annexure 3 to the petition) along with entire proceedings of complaint case no. 738 of 2015, Subhash Chandra Kainthola vs Mohd. Anwar, pending in the court of Addl. Chief Judicial Magistrate, Kotdwar District Pauri Garhwal. 2. Accused-applicant has been summoned to face the trial for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, vide order dated 24.08.2015, on a complaint instituted by the complainant/respondent for the same in the court of Addl. Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal. Although the request of the complainant/respondent was that the accused-applicant should also be summoned to face the trial under Sections 420, 422, 467 IPC also, but the trial court did not find favour with the same and only summoned the accused-applicant under Section 138 of the Negotiable Instruments Act. Hence, present application under Section 482 Cr.P.C. 3. Cheque issued by the accused-applicant to the complainant/ respondent was dishonoured only on the ground that – ‘amount in words and figures differs’. Thus, there was cheque irregularity, as per the bank with whom the cheque was presented, for clearance. 4. Photocopy of the cheque has also been enclosed with present application under Section 482 Cr.P.C. In the said cheque, the words ‘nine lakh twenty thousand rupees only’ have been written. In the figures Rs. 9020000/-’ has been written. It appears that due to some inadvertent mistake one zero was added by the accused-applicant, who admitted issuing said cheque in favour of the complainant/respondent. It is settled law that a complaint under Section 138 of the Negotiable Instruments Act must contain the following ingredients, viz., (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; (iii) cheque so issued had been returned due to insufficiency of funds. 5. It is, therefore, clear that the cheque so issued has not been returned due to insufficiency of funds, but got returned only because there is difference in the amount written in words and written in figures. 5. It is, therefore, clear that the cheque so issued has not been returned due to insufficiency of funds, but got returned only because there is difference in the amount written in words and written in figures. The mistake on the part of the accused-applicant appears to be inadvertent and, therefore, this Court has every reason to interfere in the proceedings of the trial court in exercise of its inherent jurisdiction under Section 482 Cr.P.C. 6. Although jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution, but this is one such case, in which inherent power under Section 482 Cr.P.C. should be exercised. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists. 7. Application under Section 482 of Cr.P.C. is, therefore, allowed. Summoning order dated 24.08.2015, along with entire proceedings of complaint case no. 738 of 2015, Subhash Chandra Kainthola vs Mohd. Anwar, pending in the court of Addl. Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal are hereby quashed. 8. Liberty is, however, granted to complainant/respondent to pursue other civil and criminal remedies available to him as per law. 9. Since the present application under Section 482 Cr.P.C. is being disposed of without notice to the respondent, therefore, liberty is granted to him to move for recall of this order, if he feels aggrieved with the same.