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TMI Blog2019 (5) TMI 1876X X X X Extracts X X X X X X X X Extracts X X X X ..... he averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code - Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. The applicant herein has heavily relied on the bank statement and passbook of his own account. However, whatever 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 circumstances, when there is disputed question of fact is involved and there 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. It is clearly found that the applicant and his father issued different cheques to the complainant and accordingly, the complainant lodged different complaints and he has also initiated civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 138 of the N.I. Act. 2.1. It is contended that the applicant has challenged the complaint on the ground that on various grounds. According to him, he has not committed any offence under Section 138 of the N.I. Act and the complaint is an abuse of process of law and based on false and fabricated facts. He has contended that the cheque in question is in the name of 'Sai Catering Service' and the complainant does not produce any documentary evidence of the said firm and in absence of such documentary evidence, the complainant has no locus standi to file the complaint. 2.2. It is contended that he has replied to the notice dated 22.03.2017 and has admitted that the amount given by the complainant of ₹ 1,00,000/- by issuing cheque has been returned back through his father's account of State Bank of India and, thereafter, the father of the applicant has also repaid ₹ 25,000/- by cheque. It is contended that the applicant's father was need of money of ₹ 75,000/- and, therefore, in June 2016, the complainant has given the said amount to his father and at that time, he got two blank cheques for security purpose and, thereafter, the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ques have been written by somebody else and, therefore, there is alteration in the cheques and, therefore, under Section 87 of the Negotiable Instruments Act, it has become void. He has submitted that the cheques were issued in the name of the firm, whereas, the complaint has been lodged by the respondent No. 1 in his personal capacity without any material to show that he is a proprietor of the firm. While referring to the bank memo, he has submitted that it is only advise and it is not written memo. According to him, in absence of the memo of the bank, the complaint cannot be lodged. 4.1. While referring to the reply of the notice and other documents, he has submitted that the applicant has raised many factual aspects, which have been neither denied by the complainant nor have replied the same. He has submitted that in view of the agreement of repayment, the cheques could not have been presented before the expiry of the date of agreement and the entire complaint is premature. 4.2. He has also submitted that the offence under Section 138 of the Negotiable Instruments Act is completely raised on the documentary evidence and there must be existing debt, whereas, in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as submitted that in the application under Section 482 of the Code of Criminal Procedure, the disputed question of fact cannot be decided and, therefore, the present application may be dismissed. While referring to the complaint and documentary evidence, he has submitted that the ingredient of the offence has been made out and for different cheques, different complaints have been filed, however, in the present case, the accused has produced certain material, which relates to the other case, cannot be looked into. Regarding decisions cited at the bar, he has submitted that almost all decisions are pertaining to the particular facts of each case wherein the trial has been conducted and the accused were punished by the trial Court are in the appeal either by the High Court or by the Apex Court has set aside the order of the trial Court on the basis of the factual aspect of that particular case/s. According to him, the present application may be dismissed. 6. Per contra, Ms. Monali Bhatt, learned Additional Public Prosecutor has submitted that this is a dispute between the private parties and, therefore, considering the facts and circumstances of the case, the necessary order may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase other was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an exiting debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability. 9. In the case of Taramanidevi Purushottamdasji Mahota Vs. State of Gujarat (supra), this Court has held and observed in para-20 as under:- 20. Once it is conceded that facts and circumstance of the case dominates and play decisive role, then it would not be difficult to accept the myth of might of presumption under section 139 of the Act. At least in two ways, presumption becomes vulnerable to an attack by other side. One, fact may makes way for the accused and special facts or peculiar fact of the case may held back the operation of presumption or in peculiar facts of the case, the Court may l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the learned advocate for the applicant are on the same line and with a view to avoid prolix, same are not referred to in detail. 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 Procedure, is required to examine whether the averments in the complaint constitute the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial on record that the bank has returned back the cheques to the complainant with an endorsement of 'stop payment'. The applicant herein has heavily relied on the bank statement and passbook of his own account. However, whatever 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 circumstances, when there is disputed question of fact is involved and there 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. 16. Considering the facts and circumstances of the case, it is clearly found that the applicant and his father issued different cheques to the complainant and accordingly, the complainant lodged different complaints and he has also initiated civil proceedings. This shows that there is prima facie liability of payment on the part of the applicant. In view of the material placed in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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