2020 (11) TMI 395 - HC - Indian Laws

Dishonor of Cheque - enforceable debt or not - applicant argued that the impugned cheque was not against any liability - HELD THAT - In the present case, there is a cheque issued by applicant Shalu Mehrotra for payment of Rs. Three lacs, it was presented for its payment, but was dishonoured by a Bank memo, then after a notice of demand by way of registered post was issued and the same was returned with endorsement of refusal. After receipt back of the same, within the stipulated period this complaint was filed. The Magistrate took cognizance over it by registering it as a complaint case. Then after an enquiry was made, wherein statement of complainant u/s 200 Cr.P.C. was in reiteration of contention of complaint and u/s 202 Cr.P.C. there was an affidavit annexing all those documentary evidence and on the basis of these evidence collected by the Magistrate in its enquiry a prima-facie case for offence punishable u/s 138 N.I. Act was made out. Accordingly, the applicant Shalu Mehrotra was summoned for above offence punishable u/s 138 of N.I. Act. Saving of inherent power of High Court, as given under Section 482 Cr.P.C, provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Meaning thereby this inherent power is with High Court (I) to make such order as may be necessary to give effect to any other order under this Code (II) to prevent abuse of the process of any Court (III) or otherwise to secure the ends of justice. An application for setting aside summoning order was moved before the same court, which had passed impugned summoning order, and the same was rejected on the ground that no additional evidence was there. This was challenged in revision, wherein the revisional court has rightly dismissed the revision. The law cited and argued by learned counsel for applicant is also of this fact that source of income is to be explained by complainant when asked by accused i.e. it is to be asked by the accused at an appropriate stage while examining on oath is being done and the same is to be explained by complainant. At this juncture of seeing veracity of the summoning order, the above stage has not come - thus, there is no abuse of process of law in passing the impugned orders either by Magistrate Court or by revisional court. The prayer for quashing summoning order as well as proceeding of the aforesaid complaint case is refused - application dismissed.

Summary

Issues:
Application under Section 482 Cr.P.C. to quash summoning order in a criminal complaint case under Section 138 of N.I. Act.

Analysis:
1. Issue of Quashing Summoning Order: The applicant sought to quash the summoning order based on the argument that the impugned cheque was not against any liability but was issued as security. The applicant contended that the complainant failed to explain the source of income, as mandated by the Apex Court in Basalingappa Vs. Mudibasappa. The applicant claimed that the summoning order was unjustified and an abuse of process of law by the trial and revisional courts.

2. Prima Facie Grounds for Issuing Process: The court analyzed the facts and evidence to determine if there were prima facie grounds for issuing process against the accused under Section 204 Cr.P.C. The court found that a cheque issued by the applicant was dishonored, a notice of demand was issued, and the complaint was filed within the stipulated period. The Magistrate, after examination and enquiry, summoned the applicant based on the evidence collected, establishing a prima facie case under Section 138 of the N.I. Act.

3. Exercise of Inherent Jurisdiction under Section 482 Cr.P.C.: The court discussed the scope of inherent jurisdiction under Section 482 Cr.P.C. to prevent abuse of process of court and secure the ends of justice. It cited various judgments emphasizing that this power should be exercised sparingly, carefully, and with caution. The court clarified that the High Court should not embark on an inquiry into the reliability of evidence at this stage, as it is the function of the trial court. The court highlighted that the inherent power is not to be used to circumvent the prescribed procedure or delay the trial.

4. Prevention of Abuse of Process of Court: The court referred to judgments stating that the High Court can quash proceedings to prevent abuse of process only when the complaint does not disclose any offense or is frivolous, vexatious, or oppressive. It reiterated that the High Court should not inquire into the likelihood of the allegations being established by evidence. The court emphasized that the exercise of inherent jurisdiction is limited by the established legal principles.

5. Dismissal of Application under Section 482 Cr.P.C.: The court rejected the application to quash the summoning order, stating that there was no abuse of process of law in the decisions made by the Magistrate Court and the revisional court. The court held that there was no ground for interference and dismissed the application under Section 482 Cr.P.C., refusing to quash the summoning order and the proceedings of the complaint case.

In conclusion, the court upheld the summoning order in the criminal complaint case under Section 138 of the N.I. Act, emphasizing the importance of following legal procedures, avoiding abuse of process, and limiting the exercise of inherent jurisdiction under Section 482 Cr.P.C.