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TMI Blog2021 (7) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner No.2 Shri Rajendra Singh Rajpal, the petitioner has moved this petition under Article 226 of the Constitution of India with Section 482 of the Code of Criminal Procedure with the following reliefs: "28... A. Your Lordships may be pleased to allow the present petition and be further pleased to quash and set aside the impugned criminal complaint being Criminal Complaint No.8905 of 2007 filed before the learned Judicial Magistrate (First Class), Ahmedabad (Rural); B. Pending admission and final disposal of this petition, Your Lordships may be pleased to stay the further proceedings of the Criminal Complaint No.8905 of 2007 filed before the learned Judicial Magistrate (First Class), Ahmedabad (Rural); C. Such other and further orders as may be deemed just and proper in the facts and circumstances of the case may be granted." 1.2 The petitioner No.2 is the wife of Mr.Trilok Singh Rajpal, whereas Mr. Rajendra Singh Rajpal is the younger brother of the husband of the petitioner No.2 and thus brother-in-law of hers. Petitioner No.2 married to Shri Trilok Singh Rajpal in the year 1972. Her husband was working as Assistant Engineer in Madhya Pradesh Electricity Board ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Plot No.215/B, Sector F, Indore. The Bank Account No.CA 3032 was opened in the Punjab and Sind Bank. The Plot No.215/B was leased to Rajendra Singh Rajpal in the name of M/s.Balaji Cables. He also obtained the cheque book for the said account and asked the petitioner No.2 to sign some of the cheques for the business purpose and she trusting him had so done it. 1.9 On 31.10.2003, the husband of the petitioner No.2 retired from the MPEB as Additional Chief Engineer. He desired to join his brother in the business and it was conveyed to him that the entire business was of Rajendra Singh and of no one else. Jasdeep singh also was removed as Director from M/s.Balaji Cable in the month of March, 2002. Thus, the disputes and difference between the family arose and the petitioner's husband Trilok Singh had contemplated to initiate the legal proceedings, but because of the mediation of elderly members of the family, it did not result into that. 1.10 In the month of June, 2004, Rajendra Singh opened a Bank Account fraudulently in the name of petitioner No.2 in the State Bank of Indore, Khatiwala Tank Branch and deposited a Demand Draft of Rs. 3.95 Lakh, which was in favour of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness person, she was involved in the various activities & hence, it is wrong to say that anyone has taken disadvantage of her position. 4.5 It is further urged that Form No.49 and Form No.402 have been field and Form No.49 is required by the firm registered in the commercial tax office in the State of M.P. to import the materials from outside the State of M.P. It is further urged that the scope of interference under Section 482 is limited and various decisions speak of the sparing use of this provision. 5. The rejoinder-affidavit has been filed by the petitioner and additional affidavit has also been further filed by her which would not require further elaboration. 6. This Court has heard extensively the learned advocate, Mr.Bhavesh Chokshi, who has urged that deep rooted conspiracy has resulted into lodgment of this FIR. It is the dispute between the brothers, which culminated into this malicious prosecution on the part of the brother, who has made the present complaint a scapegoat. It is further his say that there is no such transport company as Laxmi Transport. The lorry receipt has also been tampered, the notice of dishonour of the cheque has been issued by the lawyer of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice." 23.The High Court, however, in this case went into various facts including the backdrop of dispute between the parties. It proceeded on the basis that in view of the demerger scheme, the conduct of the appellant in keeping mum for a long time for getting the unused blank cheques returned is tell tale. It entered into the question as to whether the complaint petition was filed only with a view to pre-emt the respondents herein to take recourse to the remedies available to them to initiate a criminal proceeding under Section 138 of the Negotiable Instruments Act or the complaint petition in effect and substance should be permitted to be raised only by way of defence. What has failed to attract the attention of the High Court was that maintainability of a criminal proceeding like the present one should not be determined only upon raising a presumption in terms of Section 139 of the Negotiable Instruments Act, it being a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very extreme cases. 19. While considering the facts of the present case, weare of the considered opinion that the present case is not one of those extreme cases where criminal prosecution can be quashed by the court at the very threshold. A defence case is pleaded but such defence is required to be considered at a later stage and not at this stage. The appellants would have ample opportunity to raise all the issues urged in this appeal at an appropriate later stage, where such pleas would be and could be properly analysed and scrutinized. 20. In view of the aforesaid position, we decline to interfere with the criminal proceeding at this stage. The appeal is consequently dismissed." 9.2 In the matter before the Apex Court in case of Sampelly Satyanarayana Rao vs Indian Renewable Energy Development Agency Limited the question for consideration was whether in the given set of facts, the dishonour of a post-dated cheque given for repayment of loan, the installment described as a "security" in the loan agreement is covered by Section 138 of the N.I.Act or not. The company there was engaged in the field of power generation, respondent was engaged in development of renewable energy a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as "security" in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque." 9.6 Crucial question to determine is the applicability of Section 138 of the Act as to whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. In Balaji Seafood Exports (India) Ltd. Vs. Mac Industries Ltd., the Madras High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also, loan was adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well- known legal principles involved in the matter. *** 22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused. The Court also held that it is not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal namely to force the accused to pay the amount due to the complainant immediately. The Court should not encourage such a practice; but, it cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The Courts cannot lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable. 9.10 The reference of Rallis India Ltd. vs. Poduru Vidya Bhusan & Ors is for the purpose where it is held that the High Court could not have discharged the respondents of the said liability at the threshold. Unless parties are given opportunity to lead evidence, as there are may disputed questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings." 9.13 Apt would be to refer to the decision rendered in case of SATISH MENON vs STATE OF GUJARAT & 1, reported in 2017 (4) GLR 3385, where the Court concluded thus: "7. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Companies, but it was not forwarded by the petitioner, in time. Later on, it appears that by paying necessary fees and additional charges, it was received by Ministry of Corporate Affairs on 12th February, 2015 stating that the petitioner has resigned from the Company as Executive Director (Sales) of the Company, but when the respondent no.2 has not accepted and challenged it by saying that the petitioner is still continued as Executive Director of the Company and he had never received letter dated 4th March, 2010 about the resignation of the petitioner from the Directorship of the Company and not received any letter or information from the company accepting the prayer of the petitioner. Thus, this factual aspect would not be decided or cannot be decided by the High Court in an application filed under section 482 of the Code of Criminal Procedure and it can only be decided by the trial court by recording necessary evidence from the either sides. In case of Mother Care(India) Ltd v/s. Prof. Ramaswamy P. Aiyar (Supra), it is held that merely because the Company has not filed Form No.32, as required to be filed and same is not registered with the Registrar of Companies, it cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a view and with a specific defence that they are of a unimpeachable character, which shall need to be regarded by this Court as also has been made permissible by the Apex Court in case of Suryalakshmi Cotton Mills Ltd (supra). 11. As could be noticed from subsequent decisions of the Apex Court not only the reference has also been made of Suryalakshmi Cotton Mills Ltd.(supra), but the Court has been emphatic in the decision that ordinarily the Court is not required to look into this aspect, this Court is of the firm opinion that the chronology of events, which has been mentioned by the petitioner at each stage would require either the adducement of the evidence on the part of the petitioner-accused , where the rebuttal will be necessary after the initial presumption, even if, the accused as per the decision of Rangappa versus Sri Mohan chooses to rely upon the documents sought to be relied upon by the complainant and also here is not the stage for this Court to enter into various details which have been emphasised upon to exercise its power under Section 482 of the Code of Criminal Procedure. 12. The Court notices that there is no disputes with regard to the signature on the che ..... 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