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2017 DIGILAW 897 (JK)

RAKESH KUMAR GUPTA v. UTTAM CHAND

2017-09-28

SANJAY KUMAR GUPTA

body2017
JUDGMENT : Sanjay Kumar Gupta, J. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashing of impugned order dated 06.04.2013 passed by learned Munsiff, Hiranagar in file No.07/Comp. titled Uttam Chand v. Rakesh Kumar Gupta and all subsequent proceedings in the said complaint. 2. It is stated in the petition that a false and frivolous complaint under section 138 of the Negotiable Instruments Act has been preferred by the respondent against the petitioner in the Court of learned Munsiff JMIC, Hiranagar; that vide order dated 06.04.2013 the cognizance against the petitioner has been taken by the learned Munsiff JMIC Hiranagar; that in his statement recorded on 12.11.2013, the petitioner denied his liability or debt vis-a-vis the petitioner on the ground that the transactions in regard to land took place with the daughter-in-law of the petitioner who is a headmaster in School Education and all liability has been paid by the petitioner to her. On that count the respondent has no locus standi to present the said complaint against the petitioner. This fact has been admitted by the respondent in his statement recorded before the learned Munsiff on 03.09.2014. The criminal complaint as well as order dated 06.04.2013 and the subsequent proceedings resulting thereof are patent abuse of the process of law and as such impugned on the following grounds: (i) That while passing order impugned dated 06.04.2013, learned Munsiff, Hiranagar overlooked the provisions of clause (b) of section 142 of the Negotiable Instruments Act as the complaint in question is patently time barred as the same has been preferred after more than one month from the date on which cause of action in terms of clause (c) of the proviso to Section 138 arises. The contention of the petitioner is vindicated from the fact that the notice in terms of clause (b) of Section 138 came to be allegedly returned on 12.02.2013 to the respondent as such, the instant complaint should have been preferred on or before 27th day of March, 2013 when the instant case has been preferred on 05.04.2013. This being so the present complaint was time barred by at least 9 days and should have been dismissed on that score alone instead of taking cognizance of the offence under section 138 of N.I. Act against the petitioner. This being so the present complaint was time barred by at least 9 days and should have been dismissed on that score alone instead of taking cognizance of the offence under section 138 of N.I. Act against the petitioner. Further a bare reading of the entire complaint vividly reflect that no prayer for condonation of delay in preferring the complaint has been preferred nor any such condonation of delay has been granted by the said Court. (ii) That the learned Munsiff, Hiranagar, committed a fatal error of law by continuing the present complaint in view of the admission of the complainant that the transactions in regard to some land took place between the petitioner and his major daughter-in-law, who is a Headmaster in a School. The liability, if any, arises against the said daughter in law and not against the petitioner as in his statement recorded on 03.09.2014 the respondent admitted that the cheque in question was filled in by the said daughter in law of the respondent and his name was filled in the said cheque. This being so, the complaint of the respondent should have been dismissed on that score alone. (iii) That the complaint of the respondent under section 138 of the N.I. Act is not in consonance with section 138 of the N.I. Act as the cheque in question has been presented beyond the statutory period of six months, as such the said complaint is liable to be set aside and quashed as the learned Munsiff has exercised jurisdiction in a most irregular manner which has put the petitioner to undue hardships and grave injustice. (iv) That the Court of learned Munsiff, Hirnagar, lacks territorial jurisdiction as the alleged cheque dishonoured was drawn by the petitioner on Gandhi Nagar, Jammu branch of the J&K Bank Ltd. and allegedly dishonoured in Jammu. 3. Objections stand filed on behalf of respondent stating therein that the petitioner has been abusing the process of law and has been trying to prolong the decision in the complaint. The facts have not been stated correctly and by misleading this Court has obtained an interim direction. The petitioner earlier had paid the amount, which is recorded in the order sheet of the trial Court. More over, the respondent has followed the provisions of law as provided under the Negotiable Instruments Act and ultimately on being satisfied, issued the process against the accused. The petitioner earlier had paid the amount, which is recorded in the order sheet of the trial Court. More over, the respondent has followed the provisions of law as provided under the Negotiable Instruments Act and ultimately on being satisfied, issued the process against the accused. The process was issued on 06.04.2013. The petitioner continued to appear before the trial Court for more than one year and also made part payment as has been recorded in the order. This petition has not been filed to stall the process to get rid of the abuse of process of the Court, but rather with a only motive to abuse the process of the Court. All the pleas which have been taken can only be decided by the trial Court. It is submitted that for legal liability, the petition under Section 138 was filed after following all the provisions of law and the complaint was filed within the period of limitation and the present petition filed is required to be dismissed. 4. No one has appeared on behalf of the petitioner. 5. Heard learned counsel for the respondent and gone through the contents of the petition and the objections filed. 6. From the perusal of certified copies of the interim orders passed by court below from time to time, it is evident that respondent herein has filed a complaint against the accused/petitioner stating that the accused in order to clear his part liability towards the complainant, issued a cheque dated 5.11.2012 bearing No.276305 amounting to Rs. 6 lacs of the Jammu and Kashmir Bank Ltd., Gandhi Nagar, Jammu Tawi to be drawn from accused's account No. SB-32123. The accused has handed over the said cheque to the complainant at Chadwal Morh, Tehsil Hiranagar, District Kathua. That the complainant presented the said cheque issued by the accused in his account No.89 with his banker-Jammu and Kashmir Bank Ltd., Marheen, Tehsil Hirnagar for the collection of the cheque amount from the account of the accused mentioned above but the same was dishonoured by the accused's banker for the reason that there are not sufficient funds in the account. The memo dated 22.01.203 in original is attached with the complaint. That thereafter the complainant served the accused with notice dated 12.02.2013 under Section 138 of Negotiable Instrument Act through registered post calling upon the accused to make payment of Rs. 6 lacs along with Rs. The memo dated 22.01.203 in original is attached with the complaint. That thereafter the complainant served the accused with notice dated 12.02.2013 under Section 138 of Negotiable Instrument Act through registered post calling upon the accused to make payment of Rs. 6 lacs along with Rs. 2000/- the costs of notice within fifteen days from the receipt of notice, which were intentionally and deliberately not received by the accused and the same were returned back to the complainant. That the accused wilfully kept insufficient funds in his account and allowed the cheque to face dishonour to avoid the payment and cheat the complainant and in this way he has rendered himself liable for criminal offence under Section 138 of Negotiable Instrument Act. That the cheque was presented for collection of payment at the J&K Bank Ltd. Marheen and dishonour of said cheque was intimated by the said Branch to the complainant. 7. This complaint was filed before court below on 5.4.2013; the court below after recording the statement of complainant on oath took cognizance under section 138 of N.I. Act and issued process on 6.4.2013; then various notices were issued to accused/petitioner herein, and finally he appeared on 31.8.2013. The statement of accused under section 242 Cr.P.C., 1973 was recorded on 12.11.2013 since the case was summon trial. There after complainant was directed to produce evidence; thereafter even statement of complainant has been recorded. 8. In the meanwhile, accused has filed present petition and obtained stay of proceeding. 9. The scope for interference by High Court while exercising the inherent power under section 561-A Cr.P.C. for quashing the complaint/FIR has been enumerated in AIR 2017 Supreme Court 373 in case titled State of Telangana v. Habib Abdullah Jeelani and ors., wherein it is held as under:- "11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 Cr.P.C , 1973or under Article 226 of the Constitution for quashing of the FIR. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 Cr.P.C , 1973or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad, Jehan Singh v. Delhi Administration, Amar Nath v. State of Haryana, Kurukshetra University v. State of Haryana, State of Bihar v. J.A.C. Saldanha, State of West Bengal v. Swapan Kumar Guha, Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Bihar v. Murad Ali Khan and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 Cr.PC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:- (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 Section 155(2) of the Code. (3) Where the un-controverted 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. (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. (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." It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court's inherent power can be exercised. 10. In present case the grounds taken in the petition are of facts, which cannot be taken into consideration in this petition; the petitioner herein has not denied that cheque bears his signature, but taken stand that transactions in regard to land took place with the daughter-in-law of the petitioner who is a headmaster in School Education and all liability has been paid by the petitioner to her. This is a defence, which can be decided during trial. Another defence taken is that respondent/complainant has no locus standi to file complaint; this is also a rebuttable fact; further in present case the cheques in question bear name of respondent, so it can be inferred that he is lawful holder of cheques, which have been dishonoured. The plea of limitation is also a fact as held in 2014 SLJ (3) 969 in case titled Vikram Singh v. Chain Chand. The plea of limitation is also a fact as held in 2014 SLJ (3) 969 in case titled Vikram Singh v. Chain Chand. The another ground taken that that Court of learned Munsiff, Hirnagar, lacks territorial jurisdiction as the alleged cheque dishonoured was drawn by the petitioner on Gandhi Nagar, Jammu branch of the J&K Bank Ltd, is also not tenable because cheque in question was deposited in account no. 89 of complainant at Jammu and Kashmir Bank Marheen Hiranagar and so part cause of action has accused to complainant within territorial jurisdiction of JMIC Hiranagar. 11. In view of above, I don't find any ground to quash the complaint, because no case has been made out. This petition is, thus, dismissed. Interim stay is vacated. Copy of this order be sent to Court below with direction to conclude the trial without any delay and strictly as per Act.