The Himachal Pradesh High Court dismissed a petition, filed by the petitioner under Section 482 of CrPC for quashing and setting aside the order dated 13.1.2020, passed by the Additional Chief Judicial Magistrate, whereby application preferred by the petitioner under Section 311 Cr.P.C. for re-calling the Bank Manager as a witness along with the entire record of dishonor of cheque in reference, the entire record of loan account of accused/petitioner and for producing certified copies of documents of recovery suit preferred by the Bank against the petitioner/accused in evidence, was dismissed. The Court observed that the complainant has the right to file a complaint under Section 138 of the NI Act on dishonor of cheque, and simultaneously, the complainant can also file a suit for recovery of the amount.
Brief Facts:
Petitioner in the present case had obtained a loan amounting to 9,73,250/- for purchasing a passenger bus on 26.8.2010. There was a default in repayment of the loan. For repayment of the loan amount, the petitioner/accused issued a cheque of 3,50,000/-, dated 16.9.2013 in favor of Himachal Gramin Bank. The said cheque was dishonored on 17.9.2013 due to “insufficient funds” in the account of the accused/petitioner, which led to the filing of a complaint by the Bank, after complying with provisions of the Negotiable Instruments Act, against the petitioner/accused.
In the application, the Bank Manager has been proposed to be summoned along with the record of dishonor of the cheque in reference and the entire loan record of the loan account of the accused/petitioner.
Observations of the Court:
The Court noted that vague prayer has been made to produce the record of dishonor of chque, without disclosing what will be that record, other than the record produced by the complainant in the present complaint. Loan account of the petitioner/accused has also been proposed to be summoned.
The Court observed that for adjudication of a complaint under Section 138 of the Negotiable Instruments Act, the production of the loan account of the petitioner/accused is not necessary, as nothing has been stated in the application that how and in what manner the said record is going to facilitate the Court to arrive at just conclusion of the case.
Further, the Court said that the complainant has the right to file a complaint under Section 138 of the NI Act on dishonor of cheque, and simultaneously, the complainant can also file a suit for recovery of the amount. Therefore, in the present case, filing of a recovery suit and relevant records related thereto is not necessary for arriving at a just conclusion in the complaint under Section 138 of the NI Act.
The decision of the Court:
The Himachal Pradesh High Court, dismissing the petition, held that there is no illegality, irregularity, or perversity in the impugned order, warranting for exercise of powers under Section 482 Cr.P.C. to interfere in the impugned order.
Case Title: Deepak Jyoti v Himachal Pradesh Gramin Bank
Coram: Hon’ble Justice Vivek Singh Thakur
Case no.: Cr. MMO No. 385 of 2020
Advocate for the Petitioner: Mr. Mukul Sood
Advocate for the Respondents: Ms. Devyani Sharma
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