Research › Search › Judgment

Calcutta High Court · body

2025 DIGILAW 131 (CAL)

Blue Ice Construction v. Blue Star Limited

2025-01-27

SUBHENDU SAMANTA

body2025
JUDGMENT : Subhendu Samanta, J. 1. This is an application u/s 401 read with Section 482 of the Code of Criminal Procedure for quashing a criminal complaint case No. being 6602 of 2017 pending before the Learned 20th Metropolitan Magistrate, Calcutta alleging the offence punishable u/s 138 read with Section 142 of the Negotiable Instrument Act 1881. 2. The brief fact of the petitioner before this court is that the petitioner and OPs had business relations since last 10 years. Petitioners provided services to the complainant for their various contracts and project jobs. Time to time petitioner has been awarded that numerous job works for supply, installation, testing and commissioning their components. The petitioner has been diligently and honestly providing its service and facilities to the complainant all along accordingly from time to time. Petitioner raised multiple bills/invoices for such services upon the complainant. 3. It is the further case of the petitioner that, initially the complainant made payments regularly against the bills, but past few years the complainant are not making regular payments to the petitioner as per his requirement. 4. It is the further case of the petitioner that the petitioner has suffered monitory and business loss due to the act of the complaint. It is the positive fact of the petitioner that complainant was reluctant in making any payment to the petitioner without giving any cogent and valid reasons in spite of suffer repeated requests. As on 15th October 2015, a sum of Rs. 30,47,471/- is due and payable from complaint. It is the further case of the petitioner that the petitioner was engaged in supply and installation of his different type of work. Petitioner was in urgent requirement of three numbers of Air Cooled Screw Chillers and was looking after the same for its market availability. It is the further case of the petitioner that the complainant company and its office bearer repeatedly and insisted the petitioner to purchase the said machine from their company. Initially the petitioner was hesitant but due to the urgent need of such machine the petitioner has purchased the said three machines from the complainant for total cost of Rs. 35,40,000/-. It is the case of the petitioner that the complainant has induced petitioner to pay initial sum of Rs. 7,08,0000/- as advanced against the same purchase order. The petitioner has complied such direction. 35,40,000/-. It is the case of the petitioner that the complainant has induced petitioner to pay initial sum of Rs. 7,08,0000/- as advanced against the same purchase order. The petitioner has complied such direction. It was assured by the complainant that the entire amount should be adjusted later and the petitioner shall get back the entire differential amount of payables and receivables. Believing upon such representations, petitioner has placed an order for purchase of such three machines. It is the further case of the petitioner that in executing the said purchase order the complainant company as again induced the petitioner to execute indemnity bond along with three cheques. The petitioner has executed indemnity bond and delivered the three cheques. It was assured by the complaint that those cheques would never been deposited, but it would be kept for security purpose. The petitioner submits that it is the utter surprise of the petitioner that the complainant has deposited the said cheques in the banker and has issued demand notice on 06th October 2017. It is the case of the petitioner that the instant criminal proceeding is mala fide and maliciously instituted with an ulterior motive only to invalid the payment in favour of the petitioner. So he prayed for quashing of the instant criminal complaint. 5. Learned Counsel for the complainant/OP submits that admittedly the petitioner has issued three cheques, out which two were placed for encashment. The two cheques were found to be dishonoured upon receipt of the memorandum from the bank. The complainant had duly served statutory demand notice u/s 138(b) of the NI Act 1881 within its time. It is the further case of the OP that, although the accused has received the said notice but has failed and to pay the cheques amount till date. Thus the complainant was very much within the statutory right to file petition of complaint in terms of provision of Section 138 of NI Act 1881 before the competent court within its statutory time. 6. Having heard the Learned Counsels for the parties it appears to me that the present petitioner has challenged a criminal proceeding initiated u/s 138 of NI Act. The issue whether the cheques were given as security or not, or whether there was outstanding liability or not, is the question of fact, which cannot be determined by this court. 6. Having heard the Learned Counsels for the parties it appears to me that the present petitioner has challenged a criminal proceeding initiated u/s 138 of NI Act. The issue whether the cheques were given as security or not, or whether there was outstanding liability or not, is the question of fact, which cannot be determined by this court. The issue relevant to be determined by the Learned Magistrate. It is absolutely impermissible for the petitioner to canvass these issues in petition u/s 428 of the Code of Criminal Procedure. 7. It further appears to me that the grounds of CRR filed by accused/petitioner may appears to be plausible, but it cannot be taken into consideration in exercising power u/s 482 of the Code of Criminal Procedure. Generally at the stage, the High Court cannot enter into disputed question of fact in deciding the petitioner u/s 482 of the Code of Criminal Procedure. The High Court has to determine whether the continuation of Criminal proceeding is abuse of process of Court. 8. In Rajeshbhai Muljibhai Patel and Ors Vs. State of Gujrat and Anr. 2020 AIR SC 818 the Hon’ble Supreme Court has held that 20. Be that as it may, in Summary Suit No. 105 of 2015, leave to defend was granted to Respondent 2 Mahendrakumar on 19-4-2016. On the application filed by Appellant 3 in the said Summary Suit No. 105 of 2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of Respondent 2 Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No. 1-194/2016 was registered on 28-12-2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in Summary Suit No. 105 of 2015, Issue 5 has been framed by the Court "whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged pending receipts". When the issue as to the genuineness of the receipts is consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit. When the issue as to the genuineness of the receipts is consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit. 21. It is also to be pointed out that in terms of Section 45 of the Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to Appellant 3-plaintiff to adduce appropriate evidence to disprove the opinion of the handwriting expert That apart, Section 73 of the Evidence Act empowers the court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No. 1-194/2016, in our view, would amount to abuse of the process of court and the petition-filed by the appellants under Section 482 CrPC in Criminal Miscellaneous Application No. 2735 of 2017 to quash FIR No. 1-194/2016 is to be allowed. 9. In HMT Watches Ltd. Vs. M.A Abida and Anr. (2015) 11 SCC 776 The Hon’ble Supreme Court has held that 7. Section 138 of the Negotiable Instruments Act, 1881 reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account. 9. In HMT Watches Ltd. Vs. M.A Abida and Anr. (2015) 11 SCC 776 The Hon’ble Supreme Court has held that 7. Section 138 of the Negotiable Instruments Act, 1881 reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, d either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or e with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period f of its validity, whichever is earlier, (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. For the purposes of this section, 'debt or other a legally enforceable debt liability' means a or other liability." 8. Section 139 of the Negotiable Instruments Act, 1881 provides that there shall be a presumption in favour of holder of a cheque as to the debt or liability. It reads as under: "139. Presumption in favour of holder. Explanation. For the purposes of this section, 'debt or other a legally enforceable debt liability' means a or other liability." 8. Section 139 of the Negotiable Instruments Act, 1881 provides that there shall be a presumption in favour of holder of a cheque as to the debt or liability. It reads as under: "139. Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability." 9. Section 140 of the Negotiable Instruments Act, 1881 prohibits what cannot be a defence in a prosecution in respect of the offence punishable under Section 138 of the NI Act. It reads as under: "140. Defence which may not be allowed in any prosecution under Section 138.-It shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section." 10. Having heard the learned counsel for the parties, we are of the view that the accused (Respondent 1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorised by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. 10. Considering the above observation of Hon’ble Supreme Court and considering materials on record it appears to me that the petitioner has approached this court for quashing a criminal proceeding initiated u/s 138 of NI Act. The Petitioner has admitted the execution of indemnity bond as well as the cheques in question. There are statutory presumptions in support of the holders of the cheques as enumerated under the provisions of Section 139 of the NI Act. 11. Considering the entire aspect I find no reason to interfere with the proceeding pending before the Learned Metropolitan Magistrate. 12. Under the above observation the Instant CRR appears to devoid of merit and the same is dismissed. 13. CRR is disposed of. All connected Applications if pending are also disposed of. 14. Any order of stay, passed by this court during the pendency of the instant CRR, is hereby also vacated. 15. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.