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TMI Blog2025 (1) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... ned that he had given Rs.12,25,000/- in cash to the applicant for purposes of purchasing property. Although, in the complaint as well as notice, the complainant has spoken about returning of Rs.11,00,000/- by giving a cheque in this regard but there is no whisper about Rs.1,25,000/-. In case it is taken that Rs.1,25,000/- has already been paid, therefore, as part payment was already made, the complaint under Section 138 N.I. Act could not have been entertained - Be that as it may, once the complainant i.e. opposite party no.2 has not disclosed the lawyer and client relationship between him and the applicant and as for the first time admitted the aforesaid fact in his counter affidavit, the story in the complaint of giving advance in cash without disclosing as to how and from where such an arrangement was made also gives benefit to the applicant who under such relationship as admitted by the opposite party no.2 in his counter affidavit has mentioned about an agreement which cannot be disbelieved by this Court. As per the provision of Section 202 Cr.P.C. as amended with effect from 23.6.2006, the requirement is that in those cases where the accused is residing at a place beyond the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present facts and circumstances of his case. This Court finds a good ground for quashing the impugned summoning order as well as entire proceedings - The present application under Section 482 Cr.P.C. is, accordingly, allowed. - Hon'ble Mrs. Manju Rani Chauhan, J. For the Applicant : Ashok Kumar Singh, Sanjeev Singh For the Opposite Party : Vikas Singh ORDER 1. Heard Mr. Sanjeev Singh assisted by Mr. Ramesh Kumar Singh and Mr. Ashok Kumar Singh, learned counsels for the applicant, Mr. Ram Sharan Singh/applicant appearing in person, Mr. Vikas Singh, learned counsel for opposite party no.2 as well as Mr. Amit Singh Chauhan and Mr. Mayank Awasthi, learned counsels for the State. 2. This application u/s 482 has been filed by the applicant with the prayer to quash the entire proceedings of Complaint Case No.1738/2020, under Section 138 of Negotiable Instrument Act (Alok Singh Niranjan vs. Ram Sharan Singh) as well as quash the summoning order dated 13.01.2021 issued by the Chief Judicial Magistrate, Jalaun, Police Station- Kotwali Orai, District- Jalaun, pending in the Court of Judicial Magistrate, Jalaun. 3. Brief facts of the case are that the opposite party no.2 filed a complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r lockdown due to COVID-19 and requested him to present the cheque on 15.06.2020. As requested by the applicant, the opposite party no.2 presented the cheque on 15.06.2020 and the same was again returned on 16.06.2020 with an information that there was insufficient fund . The applicant was well aware of the fact that there was insufficient fund in his account, however he had asked the opposite party no.2 to present the cheque again with a planned manner having no intention to return the money. 6. A legal notice was sent through registered post on 24.06.2020 and the same was received by the applicant on 08.07.2020, however no money was returned, therefore, the present complaint was filed. The affidavit in the aforesaid complaint was filed on 07.09.2020 and the applicant has been summoned on 13.01.2021. 7. The following contentions have been raised by learned counsel for the applicant : - (i) The complaint has been filed with malicious intention which is clear from the fact as the opposite party no.2 has concealed his relationship of being client of the applicant as well as the fact that the relations between opposite party no.2 and applicant were due to one Dilip Kumar Singh who hap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, he wanted to sell his Innova Crysta car. The pictures and videos of the said car were shown to the applicant and a demand of Rs.15,00,000/- for the vehicle was raised. The applicant stated that he would only pay Rs.12,00,000/- for the vehicle on which the opposite party no.2 requested for time to think on the offer as made by the applicant for purchase of the car in Rs.12,00,000/-. (v) After one month, the applicant and opposite party no.2 agreed on the amount of Rs.12,25,000/- as price for the Innova car. On 20.03.2020, the opposite party no.2 along with his colleague Vinod Kumar Srivastava, Assistant Teacher at Janta Vidya Mandir Inter College, Orai came to the house of the applicant in relation to some work. The opposite party no.2 requested for the payment for purchase of the car on which cash of Rs.1,25,000/- was paid and a cheque of Rs.11,00,000/- bearing Cheque No.390917 was given to the opposite party no.2 by the applicant requesting that the same may be presented to the bank only when the car loan, as to be applied by the applicant, was sanctioned and the money accordingly dispersed in his account. In so many words, the applicant had indicated the opposite party no.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-law of the applicant was Manager of the Institution in 1997 where the opposite party no.2 was working as Assistant Teacher which was the basis of relation which was formed between the applicant and the opposite party no.2 but as already stated, the reality was that in the year 1997 one Narendra Pal Singh was the Manager of the said Institution. The aforesaid fact shows the conduct of the opposite party no.2 and falsifies the entire story as narrated in the complaint. (xiii) In the complaint, wrong facts have been mentioned about Rs.12,25,000/- being given by opposite party no.2 in cash to the applicant on 02.10.2016 in the house of opposite party no.2 in the presence of Vinod Kumar Srivastava and Sri Hamir Singh. It is relevant to mention that Vinod Kumar Srivastava who is working as Assistant Teacher in the same Institution has also signed the consent letter dated 20.03.2020 and Hamir Singh is brother-in-law of opposite party no.2. (xiv) Presuming that the opposite party no.2 has stated that he arranged the cash of Rs.12,25,000/- within five working days creates suspicion and doubt as to how and from where such huge amount could be managed, thus falsifying the entire version o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laneous application as it does not satisfy the ingredients of a complaint, hence should not have been entertained. The affidavit being of 07.09.2020 is not maintainable as it is beyond the period of one month as required under law. (xx) The opposite party no.2 has given an affidavit on 24.12.2020 with a prayer to treat the same as statement under Section 200 Cr.P.C. The aforesaid affidavit cannot be considered as statement under Section 200 Cr.P.C. (xxi) Though, a list of witnesses has been submitted by the opposite party no.2 but the learned C.J.M. has without calling the witnesses to record their statements under Section 202 of Cr.P.C. has passed the impugned summoning order on 13.01.2021 which is against the mandatory provisions of law. It is also to be noted that the date of filing of list of witnesses before the said court and the date of issuance of summoning order is the same, which is again a legal irregularity played on the part of the court concerned. 8. Learned counsel for the applicant submits that for purposes of Section 138 N.I. Act, the cheque should be issued for legally enforceable debt or other liability. Relying upon a judgment passed by Honble Apex Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the applicant thus emphasizes that the cheque was not issued for payment of legally enforceable debt or other liability as it was for the purposes of advance payment towards purchase of Innova car. 12. Learned counsel for the applicant further submits that the inquiry as required under Section 202 Cr.P.C. is mandatory in cases where the accused resides beyond the territorial jurisdiction of the concerned Magistrate before whom the complaint is made. Placing reliance upon the judgment in the case of Suo Moto Writ Petition (Crl.) No.2 of 2020, the Apex Court has stated that 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. It has been recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. 13. Learned counsel for the applicant thus submits that in view of the aforementioned, it is necessary for the Magistrate to conduct an inquiry on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused in cases where the accused resides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed shall be scrutinized by the concerned court and if the complaint is accompanied by an affidavit and the affidavit and the documents, if any, are found to be in order, the court concerned shall proceed to take cognizance and direct for issuance of summons. The complaint so filed by the applicant fulfils all the ingredients of Section 138 N.I. Act, therefore, the same was scrutinized and the applicant has been summoned. In support of his submissions, he has relied upon a judgement passed by the Honble Apex Court in the case of Indian Bank Association and Others vs. Union of India and Others reported in (2014) 5 SCC 590. 19. Learned counsel for the opposite party no.2 further submits that the applicant has not denied the fact that he has handed over the aforesaid cheque to the opposite party no.2 nor has denied his signatures on the same, hence, in view of the judgment passed by the Honble Apex Court in the case of K. Ramesh vs. K. Konthandaraman reported in (2024) SCC OnLine SC 531, even if a blank cheque leaf is voluntarily signed and handed over by the accused towards some payment, it would attract the presumption under Section 139 of N.I. Act and in the absence of any cogent ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint has been filed with mala fide intention and hence should not have been entertained. (iii) Learned counsel for the opposite party no.2 has denied the alleged agreement between the parties, however, in this regard no statements of the witnesses mentioned in the agreement have been recorded nor they have been examined on oath to prove the same. It is for the first time in the counter affidavit a stand has been taken of engaging the applicant as a lawyer in few cases by the opposite party no.2 as well as alleged witness of the agreement-Vinod Kumar Srivastava from whom the applicant had taken blank papers. This Court finds it difficult to believe the opposite party no.2 as he had not disclosed about this relationship in the complaint, therefore, he cannot turn around and take the aforesaid stand at this juncture. (iv) The averment about using blank papers for purposes of agreement also cannot be taken as correct as signatures of witnesses are there on the same alleged blank paper, which cannot be possible in case it is believed that blank paper was used. (v) It is settled preposition of law that if a person admits his signature on some document then the onus shifts on the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn but also on the date of its maturity/presentation. If the cheque presented for collection of total value of the cheque without endorsing the part payment made by the drawer is dishonoured no offence under Section 138 N.I. Act would be attracted, as being held in the case of Dasharathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel, reported in (2023) 1 SCC 578. 27. In the present case, the opposite party no.2 has mentioned that he had given Rs.12,25,000/- in cash to the applicant for purposes of purchasing property. Although, in the complaint as well as notice, the complainant has spoken about returning of Rs.11,00,000/- by giving a cheque in this regard but there is no whisper about Rs.1,25,000/-. In case it is taken that Rs.1,25,000/- has already been paid, therefore, as part payment was already made, the complaint under Section 138 N.I. Act could not have been entertained. 28. Be that as it may, once the complainant i.e. opposite party no.2 has not disclosed the lawyer and client relationship between him and the applicant and as for the first time admitted the aforesaid fact in his counter affidavit, the story in the complaint of giving advance in cash without disclosing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, 1 [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.'' 35. As per the provision of Section 202 Cr.P.C. as amended with effect from 23.6.2006, the requirement is that in those cases where the accused is residing at a place beyond the area in which the concerned Magistrate exercises his jurisdiction, it is mandatory on the part of Magistrate to conduct an enquiry or investigation before issuing the process. That means, in case, if such an enquiry is not conducted in cases where the accused resides at a place beyond the area in which the Magistrate exercises his jurisdiction, the purpose of amendment in Section 202 Cr.P.C. would frustrate. 36. The essence of purpose of amendment has been captured by this Court in case of Vijay Dhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the concerned Magistrate, which has been held in the case of Abhijir Pawar v. Hemant Madhukar Nimbalkar and another, (2017) 2 SCC 528. The relevant para of the aforesaid judgement is as under : Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 Cr.P.C. was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22-6-2006 by adding the words ?and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction?. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a promise that the same shall be honoured for payment. To that end Section 139 of the Act raises a statutory presumption that the cheque is issued in discharge of a lawfully recoverable debt or other liability. This presumption is no doubt rebuttable at trial but there is no gain saying that the same favours the complainant and shifts the burden to the drawer of the instrument (in case the same is dishonoured) to prove that the instrument was without any lawful consideration. It is also noteworthy that Section 138 while making dishonour of a cheque an offence punishable with imprisonment and fine also provides for safeguards to protect drawers of such instruments where dishonour may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period. 43. This Court having noticed the facts of the case and the evidence on the record needs to note the legal principles regarding nature of presumptions to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable and defendant can prove the non-existence of a consideration by raising a probable defence. In paragraph No. 12 following has been laid down : ''12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that the words 'shall presume' would be conclusive. The meaning of the expressions 'may presume' and 'shall presume' have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the Court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression 'shall presume' cannot be held to be synonymous with 'conclusive proof'.'' 47. In view of the above, it is clear that the expression ''shall presume'' cannot be held to be synonymous with conclusive proof. Referring to definition of words ''proved'' and ''disproved'' under Section 3 of the Evidence Act, following was laid down by the Apex Court in paragraph No. 30 of the aforesaid judgment: ''30. Applying the said definitions of ''proved'' or ''disproved'' to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed is ''preponderance of probabilities''. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies.'' 51. In Kumar Exports v. Sharma Carpets, reported in (2009) 2 SCC 513, the Apex Court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. In paragraph Nos. 18 to 20, following has been laid down : ''18. Applying the definition of the word ''proved'' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a case relating to dishonour of cheque under Section 138. The High Court had reversed the judgment of the trial Court convicting the accused. In the above case, the accused had admitted signatures on the cheque. This Court held that where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. In Paragraph No. 13, following has been laid down : ''13. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 0886322 dated 8-2-2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable.'' 53. After referring to various other judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unduly high standard of proof. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of ''preponderance of probabilities''. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.'' 55. From the above discussion, it is clear that the opposite party no.2 has not been able to prove his case that the amount of Rs.11,00,000/- was not given as advance payment as agreed between the parties for the purpose of purchasing Innova car hence, the probable defence as raised by the applicant creates doubt about the existence of a legally enforceable debt of liability. 56. The present case appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause' have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them. OTHER DEFINITIONS OF MALICIOUS PROSECUTION . A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it. A prosecution begun in malice, without probable cause to believe that it can succeed and which finally ends in failure. A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause. A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy. The term malicious prosecution imports a causeless as well as an ill-intended prosecution. 'MALICIOUS PROSECUTION is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) M.N. Ojha v. Alok Kumar Srivastava; 2009 (9) SCC 682. 61. In the case of R.P. Kapur (Supra), the following has been observed by the Apex Court in paragraph 6: ''Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561 -A of the Code. The said section saves the inherent power 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. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under Section 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar, AIR 1928 Bom 184, Jagat Ohandra Mozumdar v. Queen Empress, ILR 26 Cal 786), Dr. Shanker Singh v. The State of Punjab, 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Ray v. Govind Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar, ILR 47 Mad 722: (AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'' 63. In the case of State of Bihar and another v. P.P. Sharma and another (Supra), the following has been observed by the Apex Court in paragraph 22 : ''22. The question of mala fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for an unauthorised purpose. There is no material whatsoever is this case to show that on the date when the FIR was lodged by R.K. Singh he was activated by bias or had any reason to act maliciously. The dominant purpose of registering the case against the respondents was to have an investigation done into the allegations contained in the FIR and in the event of there being sufficient material in support of the allegations to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ** ***** ***** ***** ***** ***** As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H.S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervations in paragraphs 25, 26, 27, 28, 29 and 30 regarding the exercise of power under Section 482 Cr.P.C. as well as the principles governing the exercise of such jurisdiction : ''25. Had the learned SDJM applied his mind to the facts and circumstances and sequence of events and as well as the documents filed by the complainant himself alongwith the complaint, surely he would have dismissed the complaint. He would have realized that the complaint was only a counter blast to the FIR lodged by the Bank against the complainant and others with regard to same transaction. 26. This Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, (1998)5 SCC 749, held: ''28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result in injustice more particularly in cases where the Complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.'' (emphasis added) 66. After the aforesaid discussion, it is also relevant to point out the fact that scope and ambit of Section 482 Cr.P.C. is a very agitated and debatable issue. Nevertheless, there are some cases which have got wide acceptance in the legal fraternity and hence, are used as the minor guidelines/principles governing the cases of quashing criminal proceedings. 67. The Hon'ble Apex Court in the case of Prashant Bharti Vs. State of NCT of Delhi reported in (2013) 9 SCC 293 has held that, in order to determine the veracity of prayer for quashing the criminal proceedings raised by an accused u/s 482 Cr.P.C., the following questions are to be raised before the High Court, if the answer to all the following questions was in affirmative, then the High Court should quash the proceedings by exercising its power u/s 482 Cr.P.C. 1. Whether the material relied upon by the accused is sound, reasonable and indubitable, i.e. material is of sterling and in impeccable quality? 2. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each case and no exhaustive elaboration of principles can be formulated; (vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; (vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned; (viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after investigation. The power is undoubtedly conferred to prevent abuse of process of the power of any Court. 72. This Court time and again has examined the scope of jurisdiction of the High Court under Section 482 Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 Cr.P.C. A three-Judges Bench of this Court in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated : 7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can easily be misinterpreted. So, it becomes important for the Courts to use it wisely and according to the guidelines laid down by the Hon'ble Apex Court. 76. Section 482 of Cr.P.C. has made its space in Cr.P.C. in order to not only enable the High Court to provide proper justice but also to curb the filing of fictitious complaints. 77. In the present case as forwarded by/from both the sides, the Hon'ble Court may surely take judicial notice that contain facts as provided u/s 57 of the Evidence Act, 1872 and set the law in motion by delivering substantial justice and balance be struck between the statutory obligations of investigation and rights of affected parties. 78. Further, even the framers of legislation while enacting section 482 Cr.P.C. had started with a non-obstante clause and completed the section with or otherwise to secure the ends of justice which lays obligation upon the power of High Court to prevent the society from criminals and law-breakers and should be exercised to stop the public from filing fictitious complaints just to fulfill their personal grudges. 79. In the present case, a balance has to be struck while considering the rival submissions made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or doubt in allegations against the applicant. 84. In this regard, it is noted that present application is moved by the applicant invoking power under Section 482 Cr.P.C. of the High Court, challenging summoning order dated 13.01.2021 as well as the entire proceedings of the criminal case. To be precise, the power of the court concerned while passing order summoning the applicant and power of the High Court U/s 482 Cr.P.C. are two different things. The court below was bound to pass appropriate orders and had to content with what is on record and cannot come to the conclusion about reliability of evidence at the initial stage, however in exercise of power u/s 482 Cr.P.C., this Court has different scope than what magistrate could have applied in the given situation. 85. The Hon'ble Apex Court in Bhajan Lal case (supra), after considering several judgments, distilled the principles governing the exercise of extra ordinary power of the court under Article 226 of the Constitution of India, 1950 or its inherent power u/s 482 Cr.P.C. Several categories of cases by way of illustrations were also listed out, the same has been earlier discussed for ready reference. But, at the same tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. 92. It is a settled canon of law that this Court has inherent powers to prevent the abuse of its own processes, that this Court shall not suffer a litigant utilizing the institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered from the above, Section 482 Cr.P.C. recognizes the inherent powers of the High Court to quash initiation of prosecution against the accused to pass such orders as may be considered necessary to give effect to any order under the Cr.P.C. or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a statutory power vested in the High Court to quash such criminal proceedings that would dislodge the charges levelled against the accused and based on the material produced, lead to a firm opinion that the assertions contained in the charges levelled by the prosecution deserve to be overruled. 18.8. While exercising the powers vested in the High Court under Section 482, Cr.P.C., whether at the stage of issuing process or at the stage of committal or even at the stage of framing of charges, which are all stages that are prior to commencement of the actual trial, the test to be applied is that the Court must be fully satisfied that the material produced by the accused would lead to a conclusion that their defence is based on sound, reasonable and indubitable facts. The material relied on by the accused should also be such that would persuade a reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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