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TMI Blog2021 (5) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... here is prima facie material showing that the cheques were issued by the accused to the complainant with his signature and there was monetary transaction between them, then in such case, inherent powers under Section 482 of the Code of Criminal Procedure cannot be exercised. This court is of the considered view that the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court and High Court should not discharge the accused from his liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the alleged possession of Kvory plant was handed over to him and while the police complaint was given against the complainant and his son-in-law and what was the lease agreement executed between the parties - Admittedly, cheque was under the signature of the present applicant given to the complainant. The purpose of alleged security, as argued by learned advocate for the applicant, can be decided before the trial Court on recording evidence. The present applicant is dismissed at the stage of admission without issuing any notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsement of Funds Insufficient on 27.08.2020 alongwith return memo. That, thereafter the complainant issued a legal notice through his advocate to the accused on 25th September 2020, which was duly received by the accused and he gave evasive reply of notice on 5th October 2020 with a view to not paying the amount as demanded by the complainant. That, on failure to pay the rent amount, as per the lease agreement, cheque of ₹ 6 lacs was deposited by the complainant with the bank authority which was dishonoured. After issuing notice by the complainant, no amount was paid by the accused to the complainant and therefore, the impugned complaint was filed. 3. Learned Additional Chief Judicial Magistrate passed an order below Ex. 1 on 4th November 2020 considering the affidavit of the complainant as well as documentary evidence produced on record and issued process by registering the complaint. Present applicant/accused has challenged the impugned complaint by preferring this application under Section 482 of the Code of Criminal Procedure. 4. Having heard learned advocate for the applicant, this court was not pleased to issue notice to the respondent no. 2 considering the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions against the respondent no. 2. That, there was no legal dues to be paid to the complainant as the cheque was given only for the security purpose, and therefore, it was requested by learned advocate for the applicant/accused to quash and set aside the Criminal Case No. 1730 of 2020 filed before the court of learned Chief Judicial Magistrate, Halol for the offence punishable under Section 138 of the NI Act and all incidental and consequential proceedings thereof. 6. After having heard learned advocate for the applicant and having gone through the complaint filed against the applicant, documents produced on record, it appears that certain correspondence was made between the parties through their learned advocates i.e. one legal notice was issued by the present applicant to the complainant on 18th March 2020. It also appears from the record that the complainant had also issued legal notice through advocate on 25th September 2020 demanding ₹ 6 lacs in respect of cheque No. 000025 issued by the accused persons and reply of the notice issued by the complainant was also given by the present applicant/accused through his advocate on 5th October 2020 wherein he has denied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recoverable, the Section is attracted and not otherwise. 11. Reference to the facts of the present case clearly shows that though the word security is used in clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. It is undisputed that the loan was duly disbursed on 28th February, 2002 which was prior to the date of the cheques. Once the loan was disbursed and installments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability. 12. Judgment in Indus Airways (supra) is clearly distinguishable. As already noted, it was held therein that liability arising out of claim for breach of contract under Section 138, which arises on account of dishonour of cheque issued was not by itself at par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of cheque issued for discharge of later liability is clearly covered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings 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. 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. 11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2 and against the applicant. Accordingly, this court did not find any merits in this petition, therefore, the same is dismissed. Ad interim relief stands vacated. Rule nisi discharged with no order as to costs. 10. This court in case of Patel Bachubhai Ramjbhai owner/partner of Gopi Dairy Pvt. v. Parsottambbai P Rami and two others reported in 2016 Law Suit (Guj) 1372, has observed as under: The issue raised by the learned advocate Mr. MIG Mansuri that the cheque in dispute was never signed by the petitioner and it was possessed by the respondent having no signature of the petitioner as it was a blank cheque, and therefore, the complaint itself is not maintainable in the eyes of law. Raising dispute of blank cheque without signature of the petitioner, allegedly in the possession of both the respondents is a question of fact which requires evidence before the trial Court. At this juncture, this Court cannot come to the conclusion that the cheque in question was not signed by the petitioner and was illegally within the possession of both the respondents. On this issue, learned advocate Mr. Mansuri has placed reliance upon decision of this Court rendered in Criminal Misc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the proceedings are initiated under Section 138 of the Act. 12. This Court in case of Chintan Jayant Manjaratkar v. Rashidkhan Rasulkhan Pathan and others reported in 2019 Law Suit (Guj) 298, has held as under: 12. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 13. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g evidence. The contents of the issues raised by learned advocate for the applicant may be considered by the trial court while recording evidence of the either side. 14. Similarly, taking Kvory plant on rent from 4th December 2019 and instead of earning profit, the applicant had incurred huge expenses in repairing and maintaining the parts and machinery of the said Kvory plant and he had incurred huge loss and therefore, he was entitled to recover from the respondent no. 2 may be considered by the learned trial court giving an opportunity of leading their evidences. 15. All these disputed question of facts or questions cannot be considered in a petition under Section 482 of the CrPC. Issuing cheque by way of security purpose may be decided after giving an opportunity to the accused person before the trial Court. The applicant/accused has not denied in his reply through advocate that the cheque was not signed by him and given to the complainant. Here, the factual questions raised by the applicant are in a nature of defence to the complaint under Section 138(a) of the Negotiable Instruments Act. This is a case wherein the disputed questions of fact are involved. Under these cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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