Inherent power of quashing criminal proceedings should be exercised very sparingly and with great circumspection.

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CRIMINAL PROCEDURE
CRL.M.C. 2870/2012
DATE OF ORDER : 1.03.2013
Rajeev Bhalla ….. Appellant
Through:Ms. Iti Sharma
versus
State & Anr. ….. Respondent
Through: Mr. Chander M. Maini
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR
CRL.M.C. NO. 2870/2012
1. By this Petition filed under Section 482 Cr.P.C , the petitioner seeks
quashing of Complaint bearing CC No. 400/K/ 2012 filed by the
respondent no. 2 under section 138 of Negotiable Instrument Act, 1881
titled as Smt. Neeraj Chopra V. Sh. Rajeev Bhalla and also the
summoning order dated 01.05.2012, issued by the court of Sh. Chander
Mohan, Metropolitan Magistrate (Central), Tees Hazari Courts, Delhi.
2. Addressing arguments on the present petition, counsel for the
petitioner submits that respondent who is a complainant before the learned
Magistrate is the sister of the petitioner and the petitioner in good faith had
handed over three blank signed cheques to the respondent herein for the
purpose of payment of some insurance premium. Counsel further submits
that by a registered will dated 21.2.2005, the mother of the petitioner had
bequeathed all her moveable and immovable assets in favour of the
petitioner and therefore, there was no occasion for the petitioner to have
issued a cheque for a sum of Rs.30 lacs in favour of the respondent towards her alleged share in the property. Counsel also submits that petitioner had
throughout been in possession of the residential house bearing flat no. L-
138-B, DDA Flats, Kalkaji, New Delhibut with a view to black mail the
petitioner and extract money from him, the respondent has filed a complaint
Case under Section 138 of the Negotiable Instruments Act, 1881 after
misusing the unused signed cheques of the petitioner. Counsel also submits
that the complaint case filed by the respondent is manifestly attended with
malafide designs and therefore, such an oblique and malice complaint is
squarely covered by the judgment of the Apex Court in the case of State of
Haryana Vs. Bhajan Lal, AIR1992SC604and the same merits dismissal.
Counsel also submits that complaint filed by the respondent is otherwise not
maintainable in the eyes of law as the same does not fulfil the other essential
ingredients of Section 138 of the Negotiable Instruments Act, 1881. Counsel
for the petitioner has also placed reliance on the judgment of the Apex Court
inPepsi Foods Ltd. and anr. Vs. Special Judicial Magistrate and Ors.
reported in AIR1998SC128 to support his arguments that the summoning of
an accused in a criminal complaint is a serious matter and therefore, the
machinery of criminal law should not be set in motion in cases of frolicsome
nature.
3. I have heard learned counsel for the parties and have also perused the
order passed by the learned Magistrate.
4. The issue raised by the petitioner in the present petition cannot be
appreciated at this stage as the same can be gone to only at the time of trial.
The respondent in her complaint has alleged that after she had sent a legal
notice with a request to the petitioner to settle the dispute with regard to the
said flat, thereafter, the parties had arrived at an oral settlement between
them, which led the petitioner to issue a cheque for a sum of Rs.30 lacs
towards the alleged share of the defendant in the said flat. It is also the case
of the complainant that she had also executed a relinquishment deed, NOC
and affidavit in favour of the petitioner with a view to relinquish her right in
the said flat. It is also the case of the complainant that the said cheque was
returned unpaid by the bank of the petitioner with the remarks “account
closed”. It is also the case of the complainant that she had issued a legal
notice dated 15.3.2011 thereby calling upon the petitioner to make payment
of the said amount of the dishonoured cheque but in vain.
5. The said averments made by the complainant in her complaint prima
facie satisfy the ingredients of Section 138 of the Negotiable Instruments Act, 1881. But the truth and veracity of the said averments cannot be
adjudged at this stage, as the Petitioner has nowhere in his petition given
any details pertaining to the purpose of giving the aforesaid cheques or the
details of the alleged insurance policies or dates, thereby satisfying the court
that these cheques were given towards an advance premium for the
insurance policy. Therefore, to say that the petitioner had issued unsigned
cheques for payment of certain insurance premium or there was no oral
settlement between the parties to settle the dispute of flat are the issues,
which can be best appreciated at the time of trial and not in exercise of
inherent jurisdiction of this court under Section 482 Cr.P.C. The petitioner
may have a good defence to ultimately succeed in the said complaint case
but at this stage, the court has to prima facie consider the averments made in
the complaint. Nothing specific explicating the allegations has been put forth
by the petitioner for the purpose of handing over the said cheques to his
sister.
6. It is well settled that for the purpose of quashing of a complaint or FIR,
the High Court cannot look into the defence of the accused. The Court is
only required to see whether on the basis of the averments made in the
complaint and the relevant particulars produced by the Complainant, there
are grounds for proceeding against the accused. Inherent power of quashing
criminal proceedings should be exercised very sparingly and with great
circumspection. It does not confer on the court to act arbitrarily as per its
own whims and caprice. At this stage, the Courts could not have gone into
the merits and reached a conclusion that there are no existing debt or liability
and quash the complaint. Therefore, the basic law is that the complaint under
Section 138 , Negotiable Instruments Act cannot be quashed by High Court
by taking recourse to Section 482 Cr.P.C, if disputed questions of facts are
involved which need to be adjudicated after respective evidence is led by the
parties before the trial court.
6. In the case of Signaps and Anr.Vs. Bumpy Udyog,149(2008)DLT185,
wherein the petitioner had filed a petition under Section 482 Cr.P.C for
quashing of a complaint under Section 138 of Negotiable Instruments Act,
1881,alleging that the complainant wilfully suppressed certain material facts
in the complaint and hence the petition deserves to be dismissed. This Court
held that the disputed facts forming the core issue of controversy, that if the
cheque was dishonoured or if it was delayed in presentation or for any
purpose there of etc. are facts which cannot be resolved under Section 482
Cr.P.C. The Hon’ble Court specifically held as under: “9. It would also be a matter of evidence whether the cheque which was
presented for payment was a blank cheque which subsequently filled up by
the complainant or was in fact issued by the accused after the expiry of the
agreement. These are disputed facts which cannot be resolved in proceedings
under Section 482 CrPC but will have to await trial. The submission of the
counsel for the petitioner that these are self-evident facts cannot be
accepted. In Shanku Concretes the agreement in question was subsisting at
the time of the presentation of the cheque in question. As far as the decision
of the Andhra Pradesh High Court in Taher N. Khambat is concerned, it was
in a criminal appeal against an acquittal and the High Court had at that stage
the benefit of the evidence whether blank cheques had been subsequently
filled up and presented for payment. Neither decision is Therefore of
assistance to the petitioner here.
10. No ground is made out for interference by this court to quash the
criminal proceedings in exercise of its powers under Section 482 Cr.P.C. It
is however clarified that no observation made by this Court is intended to
influence the findings that may be arrived at by the trial court upon an
independent assessment of the evidence that comes on record before it.
11. There is no merit in this petition and it is dismissed as such with no order
as to costs. The pending applications also stand dismissed.”
7. Under these circumstances, it cannot be said that the learned trial
Court has committed any error and / or illegality in issuing summons for
offence under Section 138 of the Negotiable Instruments Act, 1881, or the
same deserves to be quashed and set aside by this Court in exercise of
powers under Section 482 of the Code of Criminal Procedure.
8. For the reasons stated above, the present petition being devoid of any
merits deserves dismissal and therefore, the same is accordingly dismissed.
It is ordered accordingly.
Sd/-
KAILASH GAMBHIR, J
March 1, 2013

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s