2020 (11) TMI 836 - HC - Indian Laws

Dishonor of Cheque - petitioner submitted that, after the institution of the complaint the complainant has paid the entire cheque amount and has collected back the cheque in question, as such, the private complaint filed by him, does not survive - maintainability of complaint - HELD THAT - When the complaint lodged by the respondent herein is verified, the respondent as a complainant, has narrated the very same alleged facts in his complaint and contended that the accused only with an intention to harass him and for putting him to some difficulty, had secured a withdrawal slip which was unconnected with his Bank account and by forging his signature had filled the cheque for a huge amount by themselves and presented it for its realisation. If the argument of the learned counsel for the petitioner that the learned Magistrate ought not to have taken cognizance in the absence of production of the said cheque by the complainant is verified, the only answer that comes is, in the absence of any material to show that the complainant had paid the cheque amount to the accused and collected the said cheque back, as contended by the learned counsel for the petitioner, it cannot be expected that the complainant was required to produce the alleged cheque along with his complaint in the Court below - the continued argument of the learned counsel for the petitioner that the non-initiating of any criminal case against the present complainant for the offence punishable under Section 138 of N.I.Act, itself would prove that the cheque was returned to the complainant, also is not acceptable, for the reason that, in the light of Annexures-A B and the contents of the complaint at this stage and prima facie, it can be inferred that the accused after giving the reply as per Annexure-B realised that the complainant has given a suitable reply to that notice and he may initiate a legal action against them have now come up with the said defence that the cheque amount of ₹ 25,00,000/- has been paid to them in cash and the cheque has been collected back by the present complainant (respondent). Maintainability of complaint - HELD THAT - The argument of the learned counsel for the petitioner that, when the Banker has stated that the said cheque was not issued to the complainant, the present complainant/ respondent cannot initiate the present complaint, as such, the present complaint is not maintainable, is also not acceptable, for the simple reason that, when the accused through their legal notice at Annexure-A have alleged that the complainant had issued a cheque for a sum of ₹ 25,00,000/- to them and the same got dishonoured, then the complainant who has taken a defence that the cheque has got nothing to do with him and his signature in the alleged cheque has been forged, gets every right to prosecute the alleged payee in the cheque, in accordance with law - the contention of the learned counsel for the petitioner that the complaint is not maintainable is also not acceptable. There are no reason to hold that there is any possibility of the abuse of process of law or any grave injustice being caused to the present petitioner - petition dismissed.

Summary

Issues:
1. Quashing of a private complaint under Section 200 of Cr.P.C. for alleged offences under IPC.
2. Dispute over a dishonored cheque amounting to ?25,00,000.
3. Allegations of forgery and cheating against the accused.
4. Legal notice issued regarding the dishonored cheque.
5. Maintaining the complaint's validity and legality.

Analysis:

1. The respondent filed a private complaint against the petitioner and two others under Section 200 of Cr.P.C. for offenses under Sections 418, 420, 465, 467, 468, 471, and 109 read with Section 34 of IPC. The complaint alleged a civil dispute, rivalry, and a scheme to cheat the complainant of ?25,00,000 through a forged withdrawal slip from a cooperative bank. The petitioner sought quashing of the complaint, arguing that the complainant had paid the amount and retrieved the disputed cheque, rendering the complaint baseless. The respondent contended that the accused unlawfully obtained the withdrawal slip, forged the complainant's signature, and falsely accused him, leading to the legal dispute.

2. The legal notice issued by the accused regarding the dishonored cheque and the subsequent reply from the complainant formed a crucial part of the case. The complainant denied ownership of the cheque, disavowed the signature, and informed the bank about the fraudulent transaction. The respondent, as the complainant, narrated the same facts in the complaint, emphasizing the accused's malicious intent to harass and defraud him. The petitioner's argument that the complainant should have produced the alleged cheque during the complaint's initiation was refuted, as there was no obligation for the complainant to do so without evidence of payment and retrieval.

3. The court rejected the petitioner's argument that the absence of a criminal case under Section 138 of the Negotiable Instruments Act indicated the cheque's return to the complainant. The court found the petitioner's defense regarding the payment and retrieval of the cheque unconvincing, given the contents of the legal notices and the complaint. The court emphasized the complainant's right to pursue legal action against the accused based on the forged cheque and the subsequent events, dismissing the petitioner's claims of the complaint's non-maintainability.

4. The court, after reviewing the complaint and prima facie evidence presented, concluded that the complainant's allegations of fraud and forgery were serious and supported by material. Finding no abuse of process or injustice to the petitioner, the court dismissed the criminal petition, upholding the validity and legality of the complaint.