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TMI Blog2024 (7) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence. In the present case, the learned Magistrate passed an order after going through the cheque, notice, preliminary evidence in the form of an affidavit and other documents attached to the complaint. He was satisfied that there existed sufficient ground to proceed against the accused under Section 138 of N.I.Act. Hence, the accused was ordered to be summoned. It is apparent from the order that the learned Magistrate had not passed the order simply based on evidence but he has satisfied him by going through the documents, which is sufficient compliance with the provisions of Section 202 of Cr.P.C. as laid down in In re: Expeditious Trial of Cases [ 2021 (4) TMI 702 - SUPREME COURT] . Hence, the submission that there was noncompliance with section 202 of Cr.P.C. is not acceptable. The present petition fails and the same is dismissed. - Hon ble Mr. Justice Rakesh Kainthla, Judge For the Petitioner : Mr. Gangan Oberoi, Advocate For the Respondents : Ms. Avni Kochhar, Deputy Advocate General, for respondent No.1/State : Respondents No.2 and 3 proceeded ex parte vide orders dated 08.05.2023 and 01.06.2023, respectively. ORDER Rakesh Kainthla, Judge The petitioner has filed the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where they were sent to the bank of the accused. The cheques were again dishonoured with the endorsement Payment Stopped by the Drawer . The complainant served a legal notice upon the accused asking them to make the payment. The notice was duly served upon the accused but they failed to pay the amount. Hence, the complaint was filed against the accused for taking action as per the law. 3. The learned Trial Court found sufficient reasons to summon the accused vide order dated 03.02.2018. The accused being aggrieved from the summoning order has approached this Court for quashing the order and the complaint pending before the learned Trial Court. It was asserted that the goods supplied by the complainant were of inferior quality. A large quantity of medicines failed the test and these were returned to the complainant. GST of ₹ 13,35,254.81 was reversed and a debit note was issued to the complainant which was acknowledged by him. The accused expressed serious concern to the complainant about the poor quality of life-saving medicines. A meeting was called and all invoices with the complainant were settled by accused No.2. An amount of ₹ 13,35,254.81/- (Rupees Thirteen Lakhs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration Limited vs. Adventz Investments and Holding Limited 2019 (16) SCC 610, Abhijeet Pawar vs Hemand Madkhukar Nimbalkar and another 2017 (3) SCC 528, Neeta Sinha vs. P.S. Raj Steels Private Ltd., Cri. Misc No. M23507, dated 10.03.2010, K.S. Joseph vs Philips Carbon Black Ltd. and another 2016 11 SCC 105 and In Re: Expeditious Trial of cases under Section 138 of N.I. Act 1881 Suo Motu Writ Petition (Crl.) No. 2 of 2020, decided 16.04.2021 in support of his submission. 6. Ms. Avni Kochhar, learned Deputy Advocate General for respondent No.1 submitted that the dispute between the parties is private and the State has nothing to submit in the present case. 7. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 8. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon ble Supreme Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765 : (2023) 7 SCC 711 wherein it was observed at page 716:- 17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise to and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going into detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not . 11. One other reason pointed out by the High Court is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have jurisdiction to quash the FIR/complaint. 12. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process or secure the ends of justice. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings. 13. It was submitted that inquiry under Section 202 of Cr.P.C. is mandatory and the learned Trial Court had failed to conduct the inquiry. This submission is not acceptable. Hon ble Supreme Court considered the necessity of conducting an inquiry In re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881 2021 (16) SCC 116 and held that when the accused is residing outside the territorial jurisdiction of the Magistrate, the Magistrate has to conduct the inquiry. For this purpose he can examine the witnesses on affidavit and only in exceptional cases, he should examine the witnesses orally. If the Magistrate holds the inquiry himself, he need not examine the witnesses. In suitable cases, he can examine the documents to satisfy himself about the sufficiency of grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192] and Birla Corpn. [Birla Corpn. Ltd. v. Adventz Investments Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Civ) 713 : (2020) 2 SCC (Cri) 828], the inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the court cannot be dispensed with. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the learned Amici Curiae. 12. Another point that has been brought to our notice relates to the interpretation of Section 202(2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202(1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145(2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the learned Magistrate had not passed the order simply based on evidence but he has satisfied him by going through the documents, which is sufficient compliance with the provisions of Section 202 of Cr.P.C. as laid down in In re: Expeditious Trial of Cases (supra). Hence, the submission that there was noncompliance with section 202 of Cr.P.C. is not acceptable. 17. It was submitted that the learned Magistrate had not passed a detailed order; hence, the order was bad. This submission is not acceptable. It was laid down by the Hon ble Supreme Court in U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745: 2000 SCC OnLine SC 589, that there is no need to record reasons while issuing the summons. It was observed: 6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing a process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah v. State of W.B. [(2000) 1 SCC 722: 2000 SCC (Cri) 303] The following passage will be apposite in this context: (SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments annexed to the complaint. First, it is not permissible to look into the documents annexed to the petition under Section 482 of Cr.P.C. It was laid down by the Hon ble Supreme Court in MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1: 1983 SCC (Cri) 115, that the proceedings can be quashed if on the face of the complaint and the papers accompanying the same no offence is constituted. It is not permissible to add or subtract anything. It was observed: 10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. 20. Madras High Court also held in Ganga Bai v. Shriram, 1990 SCC OnLine MP 213: ILR 1992 MP 964: 1991 Cri LJ 2018, that the fresh evidence is not permissible or desirable in the proceedings under Section 482 of Cr.P.C. It was observed: Proceedings u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at matter can it proceed in the manner that a judge conducting a trial would, on the basis of the evidence collected during the course of the trial. 23. This position was reiterated in Supriya Jain v. State of Haryana, (2023) 7 SCC 711: 2023 SCC OnLine SC 765, wherein it was held: 13. All these documents which the petitioner seeks to rely on, if genuine, could be helpful for her defence at the trial but the same are not material at the stage of deciding whether quashing as prayed for by her before the High Court was warranted or not. We, therefore, see no reason to place any reliance on these three documents. 24. A similar view was taken in Iveco MagirusBrandschutztechnik GMBH v. Nirmal Kishore Bhartiya, 2023 SCC OnLine SC 125, wherein it was observed : 55. Adverting to the aspect of the exercise of jurisdiction by the High Courts under section 482, Cr. P.C., in a case where the offence of defamation is claimed by the accused to have not been committed based on any of the Exceptions and a prayer for quashing, is made, the law seems to be well settled that the High Courts can go no further and enlarge the scope of inquiry if the accused seeks to rely on materials which were not ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability . It will be seen that the presumed fact directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated reference to one can be taken as reference to another] 34. Section 139 of the NI Act, which takes the form of a shall presume clause is illustrative of a presumption of law. Because Section 139 requires that the Court shall presume the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of preponderance of probabilities , similar to a defendant in a civil proceeding. [Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184 : AIR 2010 SC 1898] ] 29. Thus, the submission that the cheque was issued without consideration or any legal liability is not acceptable at this stage. 30. The judgments of the Hon ble Supreme Court in Vijay Dhanuka s case (supra), Abjijeet Panwar s case (supra) and Smt. Neeta Sinha s case (supra) regarding the necessity of conducting inquiry need not be discussed in view of the subsequent judgment In re: Expeditious Trial s case (supra). 31. In Birla Corporation Limited s case (supra), the Hon ble Supreme Court was dealing with the case under IPC. This is not the case here. In K.S. Joseph s case (supra), the Hon ble Supreme Court was dealing with inquiry under Section 140 and under Section 202 of Cr.P.C., which has been ..... 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