Smt. Aneeta Jain vs State Of U.P. And Anr.
2023 Latest Caselaw 22310 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:54660
 

 
Reserved on :- 17.05.2023
 
Pronounced on :- 18.08.2023
 
Court No.-23
 

 
Case :- APPLICATION U/S 482 No. - 8025 of 2019
 

 
Applicant :- Smt. Aneeta Jain
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Anuuj Taandon,Purnendu Chakravarty
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I, J.

1. Heard Sri Purnendu Chakravarty, learned counsel for the applicant, Sri Himanshu Suryavanshi, learned Brief Holder for the State and perused the entire record.

2. Vide order dated 14.11.2019, notice was directed to be issued to opposite party No.2, which has been served upon him as per report dated 27.11.2019 furnished by the learned Chief Judicial Magistrate, Lucknow. However, no one has put in appearance on behalf of opposite party No.2 to argue. No counter affidavit has also been filed by opposite party No.2.

3. The instant application under Section 482 Cr.P.C. has been filed by the applicant for quashing the impugned order dated 23.10.2019 passed by the learned Special Judicial Magistrate, Additional Court No.5, Lucknow as well as all consequential proceedings arising out of Complaint Case No.1864 of 2012, under Section 138 Negotiable Instruments Act, 1881 (herein after referred to as "Act, 1881", Police Station Gomti Nagar, District Lucknow.

4. The facts of the present case are that a complaint came to be filed against accused/ applicant under Section 138 of the Act, 1881 alleging therein that the present applicant had taken loan of a sum of Rs.50,00,000/- (rupees fifty lacs) from the opposite party No.2. The opposite party No.2 arranged the money, which he states to have alleged advanced to the applicant by taking money from his relatives. According to the complaint, the present accused/ applicant issued a cheque for Rs.50,00,000/- (rupees fifty lacs) in discharge of aforesaid debt, which got dishonored due to insufficient fund in the account of the the present applicant. The applicant was issued a legal notice on 14.03.2008. Despite being in receipt of the aforesaid notice, neither any reply was given by the present applicant nor any payment was made within the statutory period. Therefore, the opposite party No.2 being left with no option, filed the instant complaint. The statement of the complainant/ opposite party No.2 was recorded under Section 200 Cr.P.C. and thereafter the present applicant came to be summoned to stand trial for the offence under Section 138 of the Act, 1881.

5. Learned counsel for the applicant has submitted that the order, whereby the applicant has come to be summoned to stand trial for the offence under Section 138of the Act, 1881, is patently illegal as the same has come to be passed without application of judicial mind.

6. His further submission is that in order to attract provision of Section 138 of the Act, 1881, the complainant/ opposite party No.2 was bound to disclose source from which he collected the money which he alleges to have advanced to the present applicant. He has also submitted that in want of source of money which he states to have advanced, there cannot be a legal presumption of existence of legally enforceable debt against the complainant/ opposite party No.2. He has also submitted that it has been the consistent case of the present applicant that having business association with complainant/ opposite party No.2, the cheque-in-question was issued as a collateral security only.

7. To buttress his aforesaid submission, learned counsel for the applicant has also placed reliance upon the judgments of Hon'ble Supreme Court in Rajaram through L.Rs. vs. Maruthachalam (since deceased) through L.Rs.1

8. His next submission is that the impugned order dated 23.10.2019, whereby the non-bailable warrant and process under Section 82 Cr.P.C. have come to be issued, is patently illegal. The same has been issued in a mechanical manner without having regard to the fact that the applicant herein is a woman and a senior citizen. The applicant is contesting the Complaint Case No.1864 of 2012 and was regularly attending the court on date fixed.

9. His further submission is that on the fateful day, the applicant could not appear because of some unavoidable circumstances. In such circumstance to issue straightaway process under Section 82 Cr.P.C. is patently illegal in view of law laid down by the Hon'ble Supreme Court in Raghuvansh Dewanchand Bhasin vs. State of Maharashtra2 and in Inder Mohan Goswami and another vs. State of Uttaranchal and others3.

10. Per contra, learned Brief Holder for the State has vehemently opposed the prayer by submitting that insofar as the quashing of entire proceedings is concerned, the order whereby the applicant was summoned to stand trial for the offence under Section 138 of the Act, 1881 has not been challenged by the applicant. However, he has been unable to dispute the fact that the applicant is a woman and a senior citizen.

11. Having heard the learned counsel for the applicant, learned Brief Holder for the State and upon perusal of record, it transpires that the applicant is being tried for the offence under Section 138 of the Act, 1881. On 23.10.2019, due to absence of the applicant in the learned trial court concerned, process under Section 82 Cr.P.C. came to be issued. Admittedly, the present applicant is a woman, who is a senior citizen.

12. The law in respect of issuance of process has been laid down by the Hon'ble Supreme Court in Inder Mohan Goswami's case (supra). Paragraphs No.51, 54 and 55 of Inder Mohan Goswami's case (supra) being relevant are quoted herein below:-

"51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.

54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants."

(emphasis supplied)

13. Thus, issuance of non-bailable warrant and process under Section 82 Cr.P.C. simultaneously cannot be appreciated in view of law laid down by the Hon'ble Supreme Court in Inder Mohan Goswami's case (supra) and Raghuvansh Dewanchand Bhasin's case (supra) as the same is patently illegal and, therefore, unsustainable.

14. At this juncture, it is apposite to quote Section 205 Cr.P.C., which is extracted herein below:-

"205. Magistrate may dispense with personal attendance of accused.--(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided."

15. Having regard to the aforesaid facts and circumstances of this case, in case, the applicant, who is a woman and is a senior citizen, moves an application seeking dispensation of her personal attendance before the learned trial court concerned, the learned trial court concerned is expected to dispose of the same by dispensing with personal attendance of the applicant subject to the fact that whenever the learned trial court concerned finds her physical appearance necessary, she may be directed to appear in person.

16. This Court also notices with concern that the complainant has not disclosed any source of fund which he allegedly raised from his relatives for lending the same to the applicant. This Court, on a careful perusal, finds that the applicant has not challenged the order whereby the applicant was summoned to stand trial for the offence under Section 138 of the Act, 1881 . Copy of the same has also not been placed on record. Therefore, at this stage, this Court does not refrain from expressing any opinion on sustainability of entire proceeding. However, it is pertinent to mention that recently the Hon'ble Supreme Court in Rajaram's case (supra) while dealing with criminal appeal in a matter pertaining to Section 138 of the Act, 1881 wherein the accused has taken a plea that the allegation of advancing money to the accused was disputed due to financial condition of the lender, the Hon'ble Supreme Court in paragraphs No.24, 26 to 30 and 34 has held as under:-

"24. The learned counsel submitted that there arose no occasion for the Appellant-Raja Ram to issue a blank cheque in the year 1992 for a chit to be subscribed much later in the year 1995. It is further submitted that even if certain amounts are not accounted for in the Income Tax Returns, this is a matter concerning only the defaulter and Revenue Authority. Thus, a borrower cannot be allowed to take advantage of the same solely on the ground that such an amount does not reflect in the Income Tax Returns. The learned counsel relied on the judgments of this Court in the cases of Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106, Kalamani Tex v. P. Balasubramanian (2021) 5 SCC 283 to buttress his submissions.

26. This Court in the case of Baslingappa v. Mudibasappa (supra) has summarized the principles on Sections 118(a) and 139 of the N.I. Act. It will be relevant to reproduce the same.

"25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:

25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. 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 they rely.

25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

25.5. It is not necessary for the accused to come in the witness box to support his defence."

27. It can thus be seen that this Court has held that once the execution of cheque is admitted, Section 139 of the N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability. It has however been held that the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It has further been held that to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. It has been held that 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 they rely.

28. In the said case, i.e. Baslingappa v. Mudibasappa (supra), the learned Trial Court, after considering the evidence and material on record, held that the accused had raised a probable defence regarding the financial capacity of the complainant. The accused was, therefore, acquitted. Aggrieved thereby, the complainant preferred an appeal before the High Court. The High Court reversed the same and convicted the accused. This Court found that unless the High Court came to a finding that the finding of the learned Trial Court regarding financial capacity of the complainant was perverse, it was not permissible for the High Court to interfere with the same.

29. In the present case, the accused appellant had examined Mr. Sarsaiyyn, Income Tax Officer, Ward No. 18, Circle (II)(5), who produced certified copies of the Income Tax Returns of the complainant for the financial year 1995-1996, 1996-1997, 1997-1998 and 1998-1999. The certified copies of the Income Tax Returns established that the complainant had not declared that he had lent Rs. 3 lakh to the accused. It further established that the agricultural income also was not declared in the Income Tax Returns.

30. The learned Trial Court further found that from the income which was shown in the Income Tax Return, which was duly exhibited, it was clear that the complainant(s) did not have financial capacity to lend money as alleged.

34. After analyzing all these pieces of evidence, the learned Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs. 3 lakh. Therefore, the case of the complainant that he had given a loan to the accused from his agricultural income was found to be unbelievable by the learned Trial Court. The learned Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs. 3 lakh to the accused. The learned Trial Court also found that the complaint had failed to produce the promissory note alleged to have been executed by the accused on 25th October 1998. After taking into consideration the defence witnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances."

(emphasis supplied)

17. Therefore, it is needless to mention that the learned trial court, while disposing of Complaint Case No.1864 of 2012 finally, will certainly look into this aspect as to whether any averment has been made by the complainant in the complaint as to what are the sources from which the opposite party No.2 collected fund to lend the same to the applicant.

18. In want of specific challenge to the summoning order, at this stage, this Court is not inclined to interfere with the same particularly having regard to the observations made in preceding paragraphs.

19. The upshot of aforesaid discussion is that the present application under Section 482 Cr.P.C. is partly allowed. Consequently, the impugned order dated 23.10.2019, whereby the non-bailable warrant and the process under Section 82 Cr.P.C. came to be issued against the applicant, is hereby quashed.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 18-8-2023

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