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2023 DIGILAW 1669 (ALL)

Gulfam v. State of U. P.

2023-07-12

DINESH PATHAK

body2023
JUDGMENT Dinesh Pathak, J. Heard learned counsel for the applicant, learned counsel for the opposite party No. 2, learned AGA and perused the record on board. 2. The present applicant has invoked the inherent power of this Court under Section 482 CrPC assailing the orders dated 6.1.2023 and 25.1.2023 passed by the trial court while rejecting the miscellaneous applications moved on behalf of the present accused-applicant in case No. 1827 of 2020 (Jafar Alam v. Gulfam), under Section 138 of Negotiable Instrument Act (in brevity, 'N.I. Act'). 3. Facts culled out from the record are that respondent No. 2 has moved a complaint dated 12.4.2018 under section 138 of N.I. Act with respect to dishonour of cheque being No. 007708 dated 22.12.2017 amounting to Rs. 4,00,000/-. Learned trial court, after considering the contents of the complaint and the statements of the witnesses, has issued the summoning order. During pendency of the case, the present applicant (accused) has moved an application dated 12.2.2021 under section 82 of N.I. Act with an averment that entire cheque amount i.e. Rs. 4,00,000/- has been paid, therefore, the complaint may be rejected and compensation to the tune of Rs. 10,00,000/- should be given to the accused against damages. The learned trial court, vide impugned order dated 6.1.2023 (annexure No. 8), has rejected the application dated 12.2.2021. In the meantime, accused has moved an application to decide the case on the basis of alleged compromise dated 25.1.2023. At later stage, the trial court by subsequent order dated 25.1.2023 (annexure No. 9) has rejected the alleged compromise dated 28.11.2018. Having been aggrieved against the orders dated 6.1.2023 (annexure No. 8) and 25.1.2023 (annexure No. 9), the present applicant (accused) has filed instant application under Section 482 CrPC. 4. Learned counsel for the applicant submits that once the entire money amounting to Rs. 4,00,000/- has already been paid to the complainant, there was no occasion to permit the proceeding under Section 138 N.I. Act to continue and the same should have been rejected on this ground and the applicant should have been discharged under section 82 of the N.I. Act. 4,00,000/- has already been paid to the complainant, there was no occasion to permit the proceeding under Section 138 N.I. Act to continue and the same should have been rejected on this ground and the applicant should have been discharged under section 82 of the N.I. Act. It is further submitted that in pursuance of the order dated 13.11.2018 (annexure No. 2) passed by this Court in application under Section 482 No. 40253 of 2018, the applicant has moved an application before the trial court to decide the same in terms of the compromise arrived at between the parties keeping in view the law laid down by the Apex Court in the case of Damodar S. Prabhu v. Sayed Babalal H. reported in 2010(5) SCC 663 , however, the same has illegally been rejected by the trial court, vide order dated 25.1.2023, without properly appreciating the ratio decided by Hon'ble Supreme Court in aforementioned decided case. It is further submitted that at present no cause of action survives inasmuch as entire money has been paid to the complainant, therefore, there is no justification to proceed with matter under Section 138 N.I. Act. 5. Per contra, learned counsel for the opposite party No. 2 has contended that the claim made by the applicant is a disputed question of fact and the same is subject to evidence to be adduced by the parties before the trial court, therefore, at this juncture, it cannot be decided in a proceeding under Section 482 CrPC. It is further submitted that under a mischievous conduct, the applicant has moved an application dated 28.11.2018 showing amicable settlement between the parties, however, in fact, no such compromise had taken place between them, consequently, serious objection was raised on behalf of the complainant before the trial court. Considering the serious objection, learned trial court has rejected the alleged compromise dated 28.11.2028, vide order dated 25.1.2023, and there is no illegality, perversity or ambiguity in the impugned orders dated 6.1.2023 and 25.1.2023 passed by the trial court which may warrant indulgence of this Court in exercise of its inherent jurisdiction, therefore, instant application under Section 482 CrPC may be rejected being misconceived and devoid of merits. 6. 6. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it revels that the application dated 12.2.2021 filed under section 82 of N.I. Act on behalf of the present applicant (accused) has been rejected, vide order dated 6.1.2023, with an observation that the evidences are still to come and the facts, as stated by the accused and complainant are still to be examined, therefore, at this stage the case cannot be closed. This Court concurs the observation made by the learned trial court with respect to the factual dispute qua payment of money as claimed by the accused-applicant. The complainant has made a serious objection with respect to such payment which was subject matter of Cheque No. 007708, therefore, disputed question of fact with regard to payment of money is subject matter of trial which can more appropriately be decided by the trial court after considering the relevant evidence adduced on behalf of the parties. So far as the rejection of compromise filed in pursuance of the order dated 13.11.2018 passed by this Court is concerned, the learned trial court has given a specific finding that the complainant has raised serious objection with respect to the genuineness of the compromise as is being claimed by the accused. The learned trial court, vide its order dated 25.1.2023, has fully considered the dictum of Hon'ble Supreme Court in the matter of Damodar S. Prabhu (supra) and came to the conclusion that same is not applicable in the instant matter wherein the complainant has denied the factum of compromise. The application under Section 138 N.I. Act has been filed in the year 2018. Since then the same is being protracted by moving one application after another. 7. Considering the entire facts and circumstances of the case in hand, I did not find any justifiable ground to entertain the present application and to interfere in the orders dated 6.1.2023 and 25.1.2023 passed by the learned trial court in the complaint under Section 138 N.I. Act as the evidence of the parties are still to come and the disputed questions of facts, qua dishonour of cheque and the payment of cheque amount, is to be more appropriately adjudicated by the trial court. In exercise of inherent powers of this Court under Section 482 CrPC, this Court is not expected to analyze the factual aspect which is to be proved before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court. However, provision as enunciated under Section 482 CrPC is not attracted in the instant matter. 8. It has been held by the Apex Court in the cases of R.P. Kapur v. State of Punjab : AIR 1960 SC 866 ; State of Haryana and Ors. v. Bhajan Lal and Others : 1992 Supp (1) SCC 335; Trisuns Chemical Industry v. Rajesh Agarwal and Ors. : (1999) 8 SCC 686 ; M. Krishnan v. Vijay Singh & Anr. : (2001) 8 SCC 645 ; Joseph Salvaraj A. v. State of Gujarat and Ors. : (2011) 7 SCC 59 ; Arun Bhandari v. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801 ; Anand Kumar Mohatta and Anr. v. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706 that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception. 9. In the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303 , Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :- "61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court." 10. In Criminal Appeal No. 675 of 2019 arising out of SLP (Crl.) No. 1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107 , the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated 31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another. 11. In the case of Priti Saraf & anr. v. State of NCT of Delhi & anr. Criminal Appeal No(s). 296 of 2021 (Arising out of SLP(Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows: "23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirely shall have to be examined on the basis of the allegation made in the complaint/ FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record. 12. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record. 12. The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex Court in State of Haryana and Others v. Bhajan Lal and Others, (1992 Suppl (1) SCC 335). The relevant para is mentioned hereunder:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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 bur engrafted in any of the provisions of the Code on 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 10 private and personal grudge." 13. It has been further elucidated recently by Hon'ble Apex Court in Arnab Manoranjan Goswami v. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length. 14. Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others reported in AIR 2021 SC 1918 , Full Bench of the Apex Court while considering the powers of quashing under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India has illustrated the circumstances under which quashing of a criminal case can be done and/or interim order can be granted. 15. Therefore, the disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court. 16. Having considered the rival submissions advance by learned counsel for the applicant and learned counsel for the opposite party No. 2 and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground made out to consider the merits of the instant case. As such, prayer of quashing as made in instant application is hereby refused. 17. Accordingly, the present application under Section 482 CrPC is hereby dismissed. 18. The observation made, if any, in deciding the present application will not affect the merits of the case pending before the trial court, who is free to decide the matter on its own merits.