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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 ..... .2 filed a complaint under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) on 03.08.2020 against the applicant stating therein that the opposite party no.2 is working as Assistant Teacher at Janta Vidya Mandir Inter College, Orai-Jalaun. The Manager of the aforesaid is Dilip Kumar Singh, who is real brother-in-law (Saadhu Bhai) of the applicant. Due to the good relations between the two, they used to have money transactions with each other. It has been further alleged that on 25th September, 2016, the applicant requested for 10 to 15 lakh rupees from opposite party no.2 as he wanted to purchase a plot at Allahabad. The applicant requested the opposite party no.2 to make arrangements for the money, for which he was ready to pay interest also. It has been further alleged that as relations between the two were good and they had maintained honest relationship of money transactions with each other, therefore, opposite party no.2 requested the applicant to come to his house to take the money on 02.10.2016, hence the applicant on the same date i.e. 02.10.2016, reached the residence of opposite party no.2 at about 4:00 pm and took the money. Rs.12,25,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Dilip Kumar Singh who happens to be brother-in-law of the applicant and was Manager of the Institution in which the opposite party no.2 was working as Assistant Teacher at the relevant point of time, whereas the real fact is that in the year 1997 Mr. Narendra Pal Singh was the Manager of the said Institution whereas at the time of filing the complaint Sri Dilip Kumar Singh was the Manager. (ii) The opposite party no.2 had approached the applicant to engage him as a counsel in Writ Petition No.4926 of 1997 (Alok Singh Niranjan vs. District Inspectors of Schools and Others) filed by opposite party no.2 before this Court. The aforesaid writ petition was disposed of vide order dated 29.11.2001 directing the respondents to pay the salary for the period the petitioner discharged his duty in the Institution. After the aforesaid order, the applicant and the opposite party no.2 were not in contact from 2002 till January, 2017. (iii) The opposite party no.2 again approached the applicant to file Writ No.11135 of 2018 (Alok Singh Niranjan vs. State of U.P. and Others) for regularization of his service. The same was disposed of vide order dated 03.05.2018 with a direction to the concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad indicated the opposite party no.2 to present the cheque only when the loan is sanctioned and information regarding this was to be given by the applicant to opposite party no.2. The aforesaid was possible due to the client-lawyer trust relationship as built between the applicant and the opposite party no.2. Thus, the cheque was issued as an advance payment for purchase of Innova car. (vi) It was agreed between the parties that the possession of the Innova Crysta car will be given to the applicant only when full amount is received by the opposite party no.2. (vii) In this regard, a consent/agreement letter was prepared on 20.03.2020 which was signed by applicant as well as opposite party no.2 in the presence of Vinod Kumar Srivastava son of Sri Shivshankar Srivastava as well as Mr. Vimlendra Kumar son of Sri Chhabiram Pal resident of District Moradabad who was also a client of the applicant. (viii) The agreement between the applicant and the opposite party no.2 was a contingent contract under Section 31 of the Indian Contract Act, 1872 and as the condition of grant of car loan in favour of applicant was not fulfilled, therefore, such contract became void as per Section 32 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be managed, thus falsifying the entire version of the complaint. (xv) In the complaint as well as the notice, it has been mentioned that the applicant and the opposite party no.2 had long history of money transactions. However, except the fees as paid by opposite party no.2 as client to his lawyer/applicant, there is no other transaction between the two. The fact of client-lawyer relationship has been deliberately concealed by the applicant hence the complaint has not been filed with clean intention. (xvi) Learned counsel for the applicant further submits that the story as narrated in the complaint also appears to be doubtful as at the time of demonetization, how could such a huge amount be arranged by the opposite party no.2 has also not been disclosed. The applicant does not have any plot nor is a property dealer, therefore, it cannot be said that any amount has been received by him from opposite party no.2 for purchasing a plot. (xvii) Learned counsel for the applicant further submits that as per the complaint, the applicant is alleged to have taken Rs.12,25,000/- from opposite party no.2 for purchase of some plot but there is no averment with respect to Rs.1,25,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability. Relying upon a judgment passed by Honble Apex Court in the case of Indus Airways Pvt. Ltd. and Others vs. Magnum Aviation Pvt. Ltd. and Another, reported in 2014 (12) SCC 539 the Court in paragraph no.9 has opined that the explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past 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 order was placed is not supplied, in considered v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient grounds to proceed against the accused in cases where the accused resides beyond the territorial jurisdiction of the Magistrate Court. 14. Learned counsel for the opposite party no.2 submits that the complaint as filed by the opposite party no.2 under Section 138 of N.I. Act fulfills the ingredients as required i.e. :- (i) drawing of cheque. (ii) presentation of cheque to the bank. (iii) return of cheque unpaid by the drawee bank. (iv) giving notice in writing to the drawer of the cheque demanding payment of a cheque (v) failure of the drawer to make payment within 15 days of receipt of notice. 15. Once cheque has been signed and issued in favour of the holder of the cheque then there is a statutory presumption under Section 139 of N.I Act that the cheque was issued in discharge of a legally enforceable debt or liability hence, there is sufficient material on record to show that the prosecution under Section 138 of N.I. Act has been validly instituted by the opposite party no.2. 16. He further submits that no such agreement was entered into between the applicant and the opposite party no.2 but instead the applicant who was his lawyer had taken his signatures on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would attract the presumption under Section 139 of N.I. Act and in the absence of any cogent evidence to show that the cheque was not issued in discharge of debt, the presumption would hold good. 20. Relying upon a judgment of Sunil Todi and Others vs. State of Gujarat & Another reported in (2022) 16 SCC 762, learned counsel for the opposite party no.2 submits that the evidence of complainant can be given by him on an affidavit. The Court has no reason for insisting on the evidence of witnesses to be taken on oath. Consequently in the aforesaid decision, it has been held that Section 202 (2) Cr.P.C. is inapplicable to complaints under Section 138 N.I. Act in respect of the examination of witnesses on oath. The Court further held that evidence of witnesses on behalf of complainant can be permitted on oath. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine the witnesses and in suitable cases the Magistrate can examine the documents to satisfy that there was sufficient grounds for proceeding under Section 202 Cr.P.C. 21. Relying upon a judgment of Ripudaman Singh vs. Balakrishna reported in (2019) 4 SCC 767, the learned counsel for opposite part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled preposition of law that if a person admits his signature on some document then the onus shifts on the person who admits his signatures on a document to prove that it was obtained on blank papers or was taken under undue influence or under pressure. The aforesaid fact has been held in the case of Surjit Singh vs. Nanak Singh, RSA No.3124 of 2004 decided on 25.09.2008 by the High Court of Punjab and Haryana At Chandigarh. (vi) In the facts of the present case, the opposite party no.2 has for the first time spoken about signatures on blank papers being taken by the applicant hence, it was for him to mention the aforesaid fact in the complaint as filed by him that the signatures on such blank papers were taken under undue influence or under pressure. It is admitted position that the opposite party no.2 being client of the applicant had signed the papers not being under any undue influence or under any pressure and the argument as placed that the blank papers have been used for the purpose of the agreement which is now being denied by the opposite party no.2 could not be believed as he has not disclosed the relationship of client and lawyer in his complaint. 23. For a complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 29. This Court finds that where payment was made by cheque in nature of advance payment, it indicates that at the time of withdrawal of cheque, there was no existing liability as such the complaint under Section 138 N.I. Act is not maintainable. 30. The aforesaid fact has been held in the case of Indus Airways Pvt. Ltd and Others vs. Magnum Aviation Pvt. Ltd and Another, reported in 2014 (12) SCC 539. The same was reiterated by the Hon'ble Apex Court in the case of Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Limited reported in (2016) 10 SCC 458 wherein it was made abundantly clear that culpability under Section 138 of the Act is extinguished only when the dishonoured cheque was issued for the purpose of an advance payment. 31. The facts of the present case where the lawy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638: "11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process ''in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'' and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not. 12. The words ''and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'' were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment." 38. Similar view has been taken in the Supreme Court judgement in the case of Sunil Todi vs. The State of Gujarat, (2022) 16 SCC 762 , wherein enquiry by the concerned Magistrate is mandatory, in case, where the accused is residing at a place beyond the area of its jurisdiction prior to issuance of process. 39. Thus, the impugned order of summoning the applicant without conducting mandatory inquiry under Section 202 (1) Cr.P.C. is liable to be quashed. 40. Coming to the merits of the case, it would be appropriate to reproduce Sections 118, 138 and 139 of Negotiable Instruments Act, 1881 for proper adjudication of the matter. ''118. Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made:- (a) of consideration -that every negotiable instrument was made or drawn for consideration, and that every s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, ''debt or other liability'' means a legally enforceable debt or other liability. 139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.'' 41. From the above, it is manifestly clear that a dishonour would constitute an offence only if the cheque is returned by the bank 'unpaid' either because the amount of money standing to the credit of the drawer's account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 drawn under Section 139 of the Act and the manner in which it can be rebutted by an accused. Section 118 provides for presumptions as to negotiable instruments. The complainant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before this Court refers to various judgments of the Apex Court considering Sections 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn. 44. A Three-Judge Bench of the Apex Court in the case of Kali Ram v. State of Himachal Pradesh, reported in (1973) 2 SCC 808, has laid down following : ''23. ........................One of the cardinal principles which has always to be kept in view in our system of admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.'' 48. The Apex Court has already held that what is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. Dealing with standard of proof, following was observed in paragraph No. 32 of the above mentioned case : ''32. The standard of proof evidently is preponderance of probabilities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase ''until the contrary is proved'' in Section 118 of the Act and use of the words ''unless the contrary is proved'' in Section 139 of the Act read with definitions of ''may presume'' and ''shall presume'' as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 of this Court, the Apex Court in the aforementioned case held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability, which, of course, is in the nature of a rebuttable presumption. In paragraph No. 26, following was laid down : ''26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat, (2008) 4 SCC 54, may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appears to be a case of malicious prosecution wherein the opposite party no.2 has concealed the real fact of lawyer-client relationship and has wrongly disclosed about Dilip Kumar Singh who is related to the applicant being Manager of the Institution where opposite party no.2 was working at the relevant point of time to which the Court cannot close its eyes as at the instance of relative of the applicant, the present complaint has been filed concealing the real relationship of lawyer & client. 57. It would be appropriate to understand the meaning of malicious prosecution as defined by the Supreme Court in the case of West Bengal State Electricity Board v. Dilip Kumar Ray reported in AIR 2007 SC 976. Relevant part of the said judgement reads thus: "14. ... ... ... MALICIOUS. Done with malice or an evil design; wilful; indulging in malice, harboring ill-will, or enmity malevolent, malignant in heart; committed wantonly, wilfully, or without cause, or done n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, or for ends he knows or its bound to know are wrong and against the dictates of public policy. In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein. 1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. 2. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has ended in the defendant's favor, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn., 1999) *** *** *** 58. In the facts of the present case, it is admitted position that the opposite party has not disclosed about the client-lawyer relationship and hence has not approached this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 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 1925 Mad 39).'' 62. In the case of State of Haryana and others v. Ch. Bhajan Lal and others (Supra), the following has been observed by the Apex Court in paragraph 105: ''105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 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 present the charge-sheet before the Court. There is no material to show that the dominant object of registering the case was the character assassination of the respondents or to harass and humiliate them. This Court in State of Bihar v J.A.C. Saldhana and others, [1980] 2 SCR 16, has held that when the information is lodged at the police station and an offence is registered, the mala fides of the informant would be of secondary importance. It is the material collected during the investigation which decides the fate of the accused person. This Court in State of Haryana and others v. Ch. Bhajan Lal and others, JT 1990 (4) SC 650, permitted the State Government to hold investigation afresh against Ch. Bhajan Lal inspite of the fact the prosecution was lodged at the instance of Dharam Pal who was enimical towards Bhajan Lal.'' 64. In the case of Zandu Pharmaceuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 9. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the First Information Report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 10. In dealing with the last case, it is important to bear in mind the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent 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 convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.'' 27. The case on hand is a classic illustration of non-application of mind by the learned Magistrate. The learned Magistrate did not scrutinize even the contents of the complaint, leave aside the material documents available on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing 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. Whether the material relied upon by the accused is sufficient to reject and over rule the factual assertions contained in the complaint, i.e. material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusation as false? 3. Whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or that the material is such, that it cannot be justifiably refuted by the prosecution/complainant? 4. Whether proceeding with the trial would result in an absuse, of process of the Court and hence, would not serve the end of Justice?" 68. The Apex Court in the case of Parbatbhai Ahir Vs. State of Gujarat reported in (2017) 9 SCC 641, referring to various caases has summarized following principles to govern powers of High Court under Section 482 Cr.P.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 settled the dispute; (ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and (x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 proceeding ought not to be permitted to degenerate into a 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 realisation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the parties in order to arrive at a judicious conclusion. The landmark judgments have been cited by both the parties considering which this Court has to arrive at a conclusion considering the guidelines and principles setup by the Hon'ble Apex Court in various cases. 80. In the present case, this Court finds that the opposite party no.2 has not disclosed about the lawyer-client relationship between the applicant and himself thus, the very basis of filing of complaint is dislodged as the fact of legally enforceable debt cannot be proved unless the real relationship is disclosed, due to which the alleged cheque was given by the applicant. 81. The learned counsel for the opposite party no.2 has tried to support his case by giving names ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 time, the Apex Court also recorded a note of caution. 86. From the entire discussion, what is subtly clear is that FIR and charge sheet can be quashed if allegation or evidence do not establish the commission of an offence. Upon analysis, the Court noted that the facts of each case would determine the exercise of the discretion vested in the Court to quash criminal proceedings in order to prevent abuse of process of Court. 87. In the recent judgment delivered by the Single Bench of High Court of Delhi in the case of Mr. Abhishek Gupta and another vs. State of NCT of Delhi and another passed in CRL MC 1064/2022 and CRLMA 4586/2022 decided on 16.03.2022, even while denying to interfere, not finding the case to be suitable one to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations 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 institution of justice for unjust means. Thus, it would be only proper for this Court to deny any relief to a litigant who attempts to pollute the stream of justice by coming to it with his unclean hands. Similarly, a litigant pursuing frivolous and vexatious proceedings cannot claim unlimited right upon courts time and public money to achieve his ends. 93. It is well settled that inherent powers under Section 482 Cr.P.C. have to be exercised to secure the ends of justice, to prevent abuse of process of any Court and to make such orders as may be necessary to give effect to any order under the Cr.P.C. depending upon the facts of given case. In the instant case, it appears that there is miscarriage of justice, thus relying upon the Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 reasonable person to dismiss the accusations levelled against them as false." 96. Therefore, in view of above discussion, this Court finds a good ground for quashing the impugned summoning order as well as entire proceedings of the aforesaid case. 97. Accordingly, 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 the summoning order dated 13.01.2021 passed by the Chief Judicial Magistrate, Jalaun, Police Station- Kotwali Orai, District- Jalaun, pending in the Court of Judicial Magistrate, Jalaun; are hereby quashed. 98. The present application under Section 482 Cr.P.C. is, accordingly, allowed. There shall be no order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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