9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (7) TMI 818 - HC - Indian LawsDishonor of Cheque - issuance of non-bailable warrant - validity of proceedings under Section 482 Cr.P.C. - HELD THAT - After coming to know that the non-bailable warrant has been issued this is a clear device of challenging the entire proceedings under Section 482 Cr.P.C. It is not known if the police has already arrested the accused as the warrants were issued long back before one year. The summoning order is dated 29.04.2019 which means that for a period of two years the respondents have not appeared before the learned Magistrate. Prima facie ingredients of the offence are made out from the papers on record. On the touchstone of the decision of the Apex Court and in a recent decision of High Court of Gujarat in case of A. H. Patel vs. State of Gujarat reported in 2013 (3) TMI 861 - GUJARAT HIGH COURT as the facts are similar to this case the said decision and the parameters fixed in the recent decision has holding that if the relevant aspects deserves to be investigated, the same cannot be circumvented under Section 482 of the Code - It is held that High Court should be loath in exercise of jurisdiction under Section 482 of Code to enter into the process of determining the veracity of complaint. The Apex Court in case of Rajiv Thapar vs. Madan Lal Kapoor 2013 (1) TMI 932 - SUPREME COURT where it was held that the powers vested in the High Court under Section 482 of the Code, when exercised, have far reaching consequences, most important being the consequence that it would negate the prosecution's/ complainant's case without allowing the prosecution/ complainant to lead evidence and that, therefore, the exercise of the said powers should be with utmost caution, care and circumspection. This is a case which cannot be said to be one where extraordinary power require to be exercised as basic ingredients of the alleged offences are there - petition is devoid of merits and is dismissed.
Issues Involved:
1. Quashing of criminal proceedings under Section 482 Cr.P.C. 2. Issuance of non-bailable warrants. 3. Dual proceedings under DRAT and Section 138 of N.I. Act. 4. Prima facie case under Section 138 of N.I. Act. 5. Exercise of inherent powers by High Court under Section 482 Cr.P.C. Issue-wise Detailed Analysis: 1. Quashing of criminal proceedings under Section 482 Cr.P.C.: The applicant sought to quash the proceedings of Criminal Complaint No. 1860 of 2019 under Section 138 of the Negotiable Instruments Act, 1881. The court held that the averments made in the application did not justify the use of Section 482 Cr.P.C. to quash the proceedings. The court referenced the decision in State of Telangana Vs. Habib Abdullah Jeelani and others, emphasizing that serious allegations against the accused warranted continuation of the proceedings. 2. Issuance of non-bailable warrants: The applicants challenged the proceedings after non-bailable warrants were issued. The court noted that the applicants did not challenge the summoning order initially and only approached the court after the issuance of non-bailable warrants. The court highlighted that the applicants had not appeared before the Magistrate for two years since the summoning order dated 29.04.2019. 3. Dual proceedings under DRAT and Section 138 of N.I. Act: The applicants argued that dual proceedings under DRAT and Section 138 of the N.I. Act cannot take place simultaneously. The court dismissed this argument, stating that there is no bar to proceedings under Section 138 of the N.I. Act even if other litigations are pending. The court emphasized that the bouncing of a cheque due to insufficient funds, irrespective of a one-time settlement or its rejection, could not be countered under Section 482 Cr.P.C. 4. Prima facie case under Section 138 of N.I. Act: The court found that prima facie ingredients of the offense under Section 138 of the N.I. Act were made out from the records. The court referenced the decision in Bhajan Lal cases, stating that an FIR or complaint may be quashed only if the allegations are absurd and inherently improbable, which was not the case here. The court also cited the decision in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, reinforcing that the High Court should not interfere at the early stages of investigation. 5. Exercise of inherent powers by High Court under Section 482 Cr.P.C.: The court reiterated that the inherent powers under Section 482 Cr.P.C. should be exercised sparingly and with caution. The court referenced several Supreme Court decisions, including State of Orissa vs. Ujjal Kumar Burdhan and Rajiv Thapar vs. Madan Lal Kapoor, emphasizing that these powers should only be used in extraordinary cases where the allegations do not constitute the offense alleged. The court concluded that this case did not warrant the exercise of such powers. Conclusion: The court dismissed the application under Section 482 Cr.P.C., stating that no case was made out for interference. The court imposed exemplary costs of ?50,000/- (later reduced to ?5,000/- on oral request) to be deposited with the Legal Service Authority for the benefit of COVID-19 patients. The court noted that the applicants could appear before the lower court and request the cancellation of non-bailable warrants if they had not yet been served.
|
