HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
CRIMINAL PETITION No.4697 of 2016
ORDER:
This Criminal Petition is filed by the petitioner under Section 482 of the Code of Criminal Procedure (for short 'Cr.P.C') to quash the proceedings in C.C.430/2015 pending on the file of the learned Additional Judicial Magistrate of First Class, Turuvur.
2. Perusal of the record would reveal that the petitioner herein is the sole accused and the offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act').
3. As per the complaint, the allegations against the petitioner, are as follows:
The 2nd respondent herein filed C.C.430/2015 on the file of Additional Judicial Magistrate of First Class, Tiruvur alleging that the petitioner borrowed an amount of Rs.2,50,000/- on 27.10.2013 from the 2nd respondent and issued a cheque bearing No.000005, dt.25.04.2015 towards part satisfaction of the debt. The 2nd respondent had presented the cheque for encashment. The said cheque was sent for clearance which was returned vide memo dt.05.05.2015 without making any payment, for the reason that 2 the cheque was stopped on the ground of lost/theft, through online/net banking. After getting information regarding the dishonor of the said cheque, the 2nd respondent issued a legal notice to the petitioner on 20.05.2015 and the same notice was returned unclaimed, and the petitioner failed to pay the amount, as such the present complaint has been filed and the learned Magistrate found that there is sufficient material to proceed with the case for the offence under Sec.138 of N.I.Act against the petitioner herein.
4. Whereas, the case of the petitioner is that, when the husband of the petitioner having financial problems and to incur the medical expenses of the mother-in-law of the petitioner, approached one Sindhu Srinu and requested to arrange financial assistance of Rs.1,00,000/-. On that, said Srinu advanced Rs.50,000/- and obtained blank promissory notes and cheques from the husband of the petitioner and on the next day, said Srinu came to their home and asked to return the amount of Rs.50,000/- which was given to them as he was in urgent need of money, without returning the said blank promissory note and cheque. Knowing that the petitioner is a Government employee, stating that he will arrange the amount through third parties, said Srinu obtained blank pronotes and cheques from them and handed over the same to third parties. While the matter stood thus, on 03.03.2015, the said 3 Srinu along with his men, illegally detained the petitioner and her husband in their house, forcibly had taken HDFC bank cheque books bearing cheque Nos. 000001 to 000025 and 001526 to 001535 and S.B.I cheque books belong to the husband of the petitioner bearing cheque Nos.847903 to 847913 and from 847915 to 847942 and 847944 to 848000 and also the blank promissory notes and obtained their signatures forcibly. Immediately the petitioner and her husband made a complaint to their respective banks on 04.03.2015 not to honour the cheques and made a complaint to the S.H.O., Tiruvur Police Station on 06.03.2015, but the Police had not taken any action. The petitioner gave a complaint to the Tahsildar, Tiruvur stating that the 2nd respondent was doing money lending business and to take appropriate action against him. Accordingly, the Tahsildar, Tiruvur issued a notice to the 2nd respondent and his men on 02.02.2016, but they did not turn up and the petitioner gave another complaint to the Police on 09.02.2016. The petitioner filed W.P.No. 9009 of 2016 on the file of this Court for not registering the F.I.R. The Hon'ble Court was pleased to dispose of the same directing the Police Authorities to take suitable action, but there was no response from the Police. Hence, the petitioner prays to quash the proceedings in C.C.430/2015 on the file of the learned Additional Judicial Magistrate of First Class, Tiruvur.
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5. Learned counsel for the petitioner would submit that the cheques had not been issued by the petitioner to discharge the legally enforceable debt and the cheque books were obtained by Sindhu Srinu and his men by detaining the petitioner and her husband and obtained their signatures on the pronotes and cheques forcibly. Immediately the petitioner lodged a complaint with the Police as well as Tahsildar, Tiruvur, but there was no response from the Police. Inspite of the issuance of notice by the Tahsildar, Tiruvur, the 2nd respondent, and his men did not turn up and did not submit any explanation. The 2nd respondent might have used one of the cheques in which signatures were obtained by force and filed a false complaint. Therefore, the petitioner filed the present petition to quash the proceedings in C.C.430/2015.
6. Learned counsel for the 2nd respondent would submit that the petitioner borrowed the amount from the 2nd respondent and to discharge her liability, issued a cheque and when the said cheque was presented for collection, the same was returned on the ground of stop payment by the drawer and that the cheque was lost/theft, through online/net banking. The learned counsel further contended that, if really the petitioner had not borrowed any amount and issued a cheque towards discharge of the debt, when the 2nd respondent issued a legal notice dt.20.05.2015, the petitioner would not have received and returned unclaimed. It 5 shows the conduct of the petitioner to avoid receipt of the notice. In fact, no notice was given to the 2nd respondent or Sindhu Srinu for obtaining their signatures on the pronotes and cheques immediate either on the same day or on the next day through advocate in order to prove their defence. Therefore, there are factual aspects and the above aspects are triable issues, which are to be considered by the trial Court during trial. It is for the trial Court to consider the same and this Court cannot consider the said defence in a petition filed under Sec.482 Cr.P.C.
7. In view of the rival contentions raised by the respective counsels, according to the petitioner herein, she had not issued the said cheque to discharge the legally enforceable debt. The defence taken by the petitioner is that she and her husband were detained by Sindhu Srinu and they obtained cheque books and pronotes and obtained signatures from them by using force and one of the said cheques was used in this case. The further case of the petitioner is that, she had given a report to the Police, but no action had been taken and she approached this Court by filing this petition. The defences taken by the petitioner are triable issues. The petitioner has to take defence before the trial Court during trial. Instead of facing the trial, the petitioner filed the present petition with a prayer to quash the proceedings in C.C.430/2015. 6
8. As stated above, the contentions and the defences taken by the petitioner, cannot be considered in a petition filed under Sec.482 Cr.P.C. The petitioner has to take said defence before the trial Court and she has to face the trial and prove her innocence.
9. In view of the facts and circumstances of the case, it is apt to refer to the decision rendered by the Hon'ble Supreme Court of India in Kamal Shivaji Pokarnekar Vs. State of Maharashtra1 wherein the Hon'ble Apex Court has categorically held that quashing criminal proceedings was called for only in a case where the complaint did not disclose any offence, or was frivolous, vexatious, or oppressive. If the allegations set out in the complaint did not constitute offence of which cognizance had been taken by the Magistrate, it was open to High Court to quash the same. It was not necessary that, a meticulous analysis of the case should be done before trial to find out whether the case would end in conviction or acquittal. If it appeared on a reading of the complaint and consideration of allegations therein, in light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for High Court to interfere. The defences that might be available, or facts/aspects which when established during the trial, might lead to an acquittal, 1 2019 SCC Online SC 182 7 were not grounds for quashing the complaint at the threshold. At that stage, the only question relevant was whether averments in complaint spell out ingredients of a criminal offence or not. The Court has to consider whether the complaint discloses the prima facie, offences that were alleged against respondents. The correctness or otherwise of said allegations has to be decided only in the trial. At initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of accused. Criminal complaints could not be quashed only on ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against accused were prima facie made out in complaint, criminal proceeding shall not be interdicted.
10. It is also relevant to refer the decision of the Hon'ble Supreme Court of India in Skoda Auto Volkswagen India Private Limited Vs. State of Utter Pradesh2 wherein the Hon'ble Apex Court while referring to the various judgments rendered by it, categorically held that the High Courts in exercise of its inherent powers under Secton 482 Cr.P.C has to quash the proceedings in criminal cases in rarest of rare cases with extreme caution.
2 2020 Latest Case Law 620 SC 8
11. In view of the principles laid down by the Hon'ble Apex Court and in view of the above discussion, it is clear that, the defence taken by the petitioner had not stated in the petition that Sindhu Srinu or his men forcibly had taken cheque book and obtained her signatures thereon. Whereas, she had given a report to the Police on 06.03.2015 wherein she stated that the said Srinu knowing about her government employment, obtained the signatures of the petitioner on the promissory notes and cheques and in another complaint given to the Police dt.09.02.2016, the petitioner stated that said Srinu came to them and took the money which was given one day before and after knowing that the petitioner was a teacher, obtained her signatures on the promissory notes and cheques and left the place. After receipt of legal notice, the petitioner had given a reply at the belated stage. But, the said notice was not filed along with this petition to know as to what defence she had taken at the primary stage. However, the learned Additional Judicial Magistrate of First Class, Tiruvur is empowered to take cognizance of the offence under Section 138 of the N.I.Act after examining the complaint and recording the statements of the 2nd respondent and he had taken cognizance.
12. Learned counsel for the 2nd respondent relied on the decision in Rathish Babu Unnikrishnan Vs. State (Govt. of NCT of Delhi) 9 and another3 wherein at Para No.15, Hon'ble Apex Court held as follows:
"15. In the impugned judgment, the learned Judge had rightly relied upon the opinion of Justice J.S.Khehar for a Division Bench in Rajiv Thapar, which succinctly express the following relevant parameters to be considered by the quashing Court, at the stage of issuing process, committal, or framing of charges, "28. The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C,, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same"".
13. In the light of the above circumstances, the pleas taken by the petitioner in the petition and in the reports which were given to the Police, dt.06.03.2015 and 09.02.2016, are inconsistent and contrary to each other, as stated above. In fact, no notice was given to the 2nd respondent or Sindhu Srinu for obtaining their signatures on the pronotes and cheques immediately whether on the same day of on the next day through advocate in order to prove 3 2022 SCC OnLine SC 513 10 their defence. On the other hand, the cheque is dt.27.10.2013 whereas, it is alleged in the complaint that Sindhu Srinu and his men obtained their signatures on the pronotes and cheques forcibly by detaining them on 03.03.2015. Which falsifies their defence. However, the defences taken by the petitioner are triable issues, which cannot be considered by this Court in an application filed under Section 482 Cr.P.C. The petitioner has to face trial and prove her innocence before the Court below. Thus, the petitioner herein failed to make out any case to quash the proceedings in C.C.430/2015 pending on the file of the learned Additional Judicial Magistrate of First Class, Turuvur. Therefore, this Criminal Petition is devoid of merit and shall stand dismissed.
14. Accordingly, the criminal petition is dismissed.
The case before the Court below pertains to the year 2015 and the Act contemplating quick disposal. The Court below is directed to expedite the matter and dispose of the same within three months from the date of receipt of a copy of this order.
As a sequel, the miscellaneous petitions, pending if any, shall stand closed.
JUSTICE DUPPALA VENKATA RAMANA Date:15.09.2022.
Dinesh 11 HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA CRIMINAL PETITION No.4697 OF 2016 15.09.2022 Dinesh