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2017 DIGILAW 562 (ALL)

Manoj Sharma v. State of U. P.

2017-02-16

NAHEED ARA MOONIS

body2017
JUDGMENT Naheed Ara Moonis,J. Heard learned counsel for the applicant, the learned AGA for the State and perused the record. The instant application has been filed invoking the inherent power of this Court under Section 482 Cr.P.C. to quash the proceeding pursuant to the summoning order and bailable warrant dated 30.11.2016 passed by the learned Judicial Magistrate, Gautam Budh Nagar, in Complaint Case No.704 of 2016 under Section 138 of the Negotiable Instrument Act (hereinafter referred as "Act"), P.S. Civil Lines, District Aligarh. It is submitted by the learned counsel for the applicant that the opposite party no.2 had filed a complaint with the frivolous allegations that the applicant had taken Rs.19,50,000/- from the opposite party no.2 as a loan for one and a half year in that regard post dated account payee cheque was handed over by the applicant to the opposite party no.2 when the applicant had already informed the bank for stop payment, yet the cheque issued by the applicant was dishonoured by the bank. Learned Magistrate has treated the complaint filed by the opposite party no.2 as complaint case and his affidavit as evidence under Section 200 Cr.P.C., besides affidavit the complainant had also filed documentary evidence vis. original cheque returned receipts of registered notice, bank memo and other documents under Section 202 Cr.P.C. on the basis whereof the learned Magistrate found that prima facie case is made out against the applicant, hence passed the order dated 30.11.2016 summoning the applicant to face trial under Section 138 of the Act. Per contra learned A.G.A. has contended that the complainant-opposite party no.2 had suffered great lost of Rs.19,50,000/- which has been repaid by the applicant through cheques and the same has not been disputed by the applicant. Thereafter the applicant had requested the bank for making stop payment of the amount, which itself shows malice intention of the applicant to cheat the complainant. There is also no dispute that the cheque was not issued by the applicant. Hence the burden of proving that the cheque was not dishonoured on account of stop payment is upon the applicant and on this ground the complaint filed by the opposite party no.2 cannot be quashed. It is further submitted that the applicant has adopted stalling and dilatory tactics and he is not appearing before the court below despite bailable warrant which was issued on 30.11.2016. It is further submitted that the applicant has adopted stalling and dilatory tactics and he is not appearing before the court below despite bailable warrant which was issued on 30.11.2016. It is further submitted that instead of giving reply to the legal statutory notice after the cheque was returned with the endorsement of stop payment, the applicant could have given the explanation disowning his liability to pay any amount and hence there is no illegality or perversity in the order impugned. Having considered the submissions advanced by the learned counsel for the parties and having perused the material placed on record, it is admitted fact that the applicant is the signatory of these cheques in question which has given rise to the filing of complaint for prosecution under Section 138 of the Act as the cheque was dishonoured on account of stop payment. The plea which has been raised only to escape from the liability which has solely been created for sake of defence. Each case has to be considered on its own merit. The several disputed question of facts as raised by the learned counsel for the applicant has to be adjudicated by the trial court as per the evidence to be adduced by the parties during the course of trial and while doing so the submission made on point of law can also be appropriately gone into by the trial court. The language used in Section 138 of the Act, it has five components, namely, (i) drawing of the cheque; (ii) presentation of the cheque to the bank; (iii) returning the cheque unpaid by the drawee bank; (iv)giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and (v)failure of the drawer to make payment within 30 days of the receipt of the notice. Thus in the present case the complaint was filed by the opposite party no.2 after fulfilling the aforesaid five components. The question whether the notice was received by the applicant or not is a disputed question of fact which has to be decided by the trial court as per the evidence to be adduced by the parties during the course of trial where the complainant had given notice through his counsel and there is mis-description of date and time will not militate and derogate the validity of the notice, particularly when the applicant has himself issued three cheques. According to the case of the applicant, he has asked the bank for stop payment then it his liability to repay the amount as mentioned in the cheque and as such the applicant cannot escape from the liability by raising the plea of stop payment, then inference of dishonest could be drawn. Burden of proving that cheque had not been issued for any debt or liability is on the applicant and that stop payment has not been asked because of insufficiency of funds. Any cheque whether issued towards repayment of debt or liability as a security if dishonoured, the drawer of the cheque incurs liability of prosecution u/S 138 of the Act. A cheque even if issued as a security for payment, it is a negotiable instrument at the hands of payee. Merely it is issued as a security is no ground to exonerate the penal liability. Hence this Court does not find it a fit case to interfere with the order impugned passed by the court below initiating proceeding under Section 138 of the Act against the applicant. The Apex Court has also laid down the guidelines in the case State of Haryana Vs. Bhajanlal, 1999 SCC(Crl) 426, and State of Bihar Vs. P. P. Sharma, 1992 SCC(Crl) 192.where the criminal proceedings could be interfered and quashed in exercise of its power envisaged under section 482 Cr.P.C. From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S. W. Palanattkar & others Vs. State of Bihar, 2002(44) ACC 168, it has been held by the Hon'ble Apex Court, that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised: - (i) to give effect an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The inherent powers of the High Court under Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised: - (i) to give effect an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists. The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. Only this has to be seen whether prima facie cognizable offence is made out or not. Even if there is suspicion about commission of offence the charge can be framed. It is settled law that once a cheque is issued for the discharge of any debt or liability it shall be presumed that it was issued by the drawee. The burden is upon the applicant to disprove that it was not issued by him. Therefore, the order impugned does not suffer from manifest illegality to thwart the legitimate prosecution, hence the prayer to quash the proceeding is refused. The application is bereft of merits and is accordingly dismissed. However, the applicant is directed to appear and surrender before the court below and apply for bail within a period of thirty days from today, the prayer for bail shall be considered expeditiously in accordance with law after hearing the Public Prosecutor. The court below shall proceed with the case expeditiously, in accordance with law. In case the applicant fails to surrender within the stipulated period the court below shall take appropriate action against him.