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2023 DIGILAW 1658 (RAJ)

Prakash Mali v. State of Rajasthan

2023-09-04

KULDEEP MATHUR

body2023
JUDGMENT : (Kuldeep Mathur, J.) :— The instant criminal miscellaneous petition has been filed by the petitioner under Section 482 Cr. P.C. challenging the order dated 29.8.2022 passed by learned Additional Sessions Judge No. 2, Barmer in Criminal Revision No. 24/2017 (47/2016) and the order dated 20.11.2015 passed by learned Additional Chief Judicial Magistrate, Barmer in Criminal Case No. 1627/2015 whereby cognizance for offence under Section 138 of the Negotiable Instrument Act was taken against the petitioner. 2. Learned counsel for the petitioner submitted that respondent No. 2 filed a complaint against the petitioner under the provisions of Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act of 1881’) stating inter alia that three cheques bearing Nos. 822095, 822098 and 822099 dated 28.10.2014 for an amount of Rs. 10,00,00 each, totalling to Rs. 30,00,000 were handed over by the petitioner to respondent No. 2. The complainant (respondent No. 2) presented the cheques on 06.11.2014, 07.11.2014 and 08.11.2014 to the bank for payment. However, the same were dishonoured by the bank and returned on 07.11.2014, 08.11.2014 and 10.11.2014 with an endorsement ‘fund insufficient’. The complainant- respondent No. 2 thereupon, served a notice dated 06.12.2014 as per the provisions of the Act of 1881. However, no reply thereof was given by the petitioner. Thereafter, the complainant- respondent No. 2 filed a complaint under Section 138 of the Act of 1881 which led to the summons and issue of process against the petitioner and ultimately, vide order dated 20.11.2015, learned Additional Civil Judge and Judicial Magistrate, Barmer had taken cognizance against the petitioner under Section 138 of the Act of 1881. 3. As noticed above, the revision petition filed against order dated 20.11.2015 passed by learned Additional Civil Judge and Judicial Magistrate, Barmer was dismissed by the revisional court i.e. learned Additional Sessions Judge No. 2, Barmer vide order dated 29.8.2022. 4. From the perusal of the miscellaneous petition preferred on behalf of the petitioner, this Court finds that the basic ground of challenge to the orders impugned is that the cheques in question were not issued in discharge of a ‘legally recoverable debt’. 5. 4. From the perusal of the miscellaneous petition preferred on behalf of the petitioner, this Court finds that the basic ground of challenge to the orders impugned is that the cheques in question were not issued in discharge of a ‘legally recoverable debt’. 5. The defence taken by the petitioner before learned court of learned Additional Sessions Judge No. 2, Barmer and revisional court i.e. learned Additional Sessions Judge No. 2, Barmer was that on 18.10.2014, while going to Bandra Road from Uttarlai (Barmer), the petitioner's cheque book of IDBI Bank A/C No. 10803315006 bearing signatures of the petitioner was mistakenly dropped by him on the road. An information was lodged by him in this regard at PS Barmer Rural and payment was also stopped. The lost cheque book was then found by the complainant who by misusing the cheque leaves, presented the same to the concerned bank. 6. Learned counsel submitted that in view of aforesaid, the offence against the petitioner under the provisions of the Act of 1881 is not made out and therefore, the miscellaneous petition may be allowed and the impugned orders dated 029.08.2022 and 20.11.2015 may be quashed and set aside. 7. Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently opposed the submissions advanced by counsel for the petitioner and prayed that the criminal miscellaneous petition may be dismissed by this Court. 8. Having gone through the orders impugned and after giving due consideration to the arguments advanced, this Court finds that the legal presumption of cheque having been issued in the discharge of liability is in favour of the complainant-respondent No. 2. The courts below have rightly held that the burden of proving that there is no existing debt or liability is on the petitioner, which he has to discharge during trial. This Court finds itself unable to quash the order taking cognizance against the petitioner when the trial is at initial stage. The petitioner would be free to take his defence with regard to existence of a legally enforceable debt or liability before the competent criminal court. 9. Hon'ble Supreme Court of India in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 , held that the power of quashing a criminal proceeding in exercise of inherent jurisdiction under Section 482 Cr. P.C. should be invoked sparingly. 9. Hon'ble Supreme Court of India in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 , held that the power of quashing a criminal proceeding in exercise of inherent jurisdiction under Section 482 Cr. P.C. should be invoked sparingly. Para 103 of the judgment is reproduced below for ready reference:— “103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 10. Similarly, Hon'ble the Supreme Court of India in the case of Rathish Babu Unnikrishnan Appellant v. State (Govt, of NCT of Delhi), SLP (Crl) Nos. 5781-5782 of 2020, held that quashing of criminal proceeding at preliminary stage itself would have grave and irreparable consequences. Para Nos. 16, 17 and 18 of the judgment are reproduced below for ready reference:— “16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pretrial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as to altogether disprove the allegations made in the complaint. 17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an unmerited advantage in the criminal process. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an unmerited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption. 18. Situated thus, to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited.” 11. In the wake of discussion made herein above and precedent law, the instant miscellaneous petition as well as stay application is dismissed. No order as to costs.