I.D. Jain vs Madan Lal Jain
2009 Latest Caselaw 958 Del

*                 HIGH COURT OF DELHI : NEW DELHI
                  Date of order : March 24, 2009
+                          Crl. M.C. No. 84/2007
                                     &
                           Cr. M. A. No. 269 of 2007
                                     &
                           Crl. (M) No. 8616/2007
                                     &
                           Crl.( M) No. 10964/2007

%        I.D. Jain                               ...          Petitioner
                           Through:   Mr. G.S. Raghav, Mr. Pankaj Sain &
                                      Mr. R.K. Burman, Advocates

                                        versus

         Madan Lal Jain                           ...            Respondent
                   Through:           Mr. S.C. Singal, Counsel for
                                      Respondent.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?


SUNIL GAUR, J.

1. The order impugned in this petition is of 26th May, 2003,

vide which trial court has summoned the petitioner as an accused

Crl. M.C. No. 84 of 2007 Page 1 in Criminal Complaint No. 1321 of 2006, titled as "Madan Lal Jain

Vs. I.D. Jain", under Section 138 of the Negotiable Instruments

Act, r/w Section 420 of the IPC.

2. Quashing of not only the aforesaid summoning order but

also of the abovesaid complaint is sought by the petitioner by

contending that the basic ingredients of the offence alleged are

not made out as it is not disclosed in the above said complaint

that the cheque in question had been issued by the petitioner

/accused in discharge of, whole or in part of the debt or other

liability and therefore, statutory presumption under Section 139

of the Negotiable Instruments Act does not arise against the

petitioner. Reliance has been placed upon decisions reported in

(1988) 1 SCC 692; (2000) 2 SCC 745; 2001 (58) DRJ 168

and (2006) 6 SCC 736, to contend that when a prosecution at

the initial stage is asked to be quashed, the test to be applied by

the court is as to whether the uncontroverted allegations as

made, prima facie establish the offence.

3. After having heard both the sides and upon perusal of this

case, I find that there is no dispute with the aforestated legal

position. It would be pertinent to refer to the averments made in

Crl. M.C. No. 84 of 2007 Page 2 Para-6 of the complaint in question, to find out as to whether the

dishonoured cheque of Rupees five lacs only was for a

consideration or was without any consideration. Para-6 of the

complaint, Annexure-P-1, reads as under:-

" That on making payment of Rs.10,00,000/0 (Rupees ten lacs) only as detailed above including cheque No. 743276 dated 27-08-1999 for Rs. Five lacs, the accused got sale deed executed and registered in the names of his three brothers namely Sh. Mahinder Singh Jain, Sh. Surender Kumar Jain and Sh. Naresh Kumar Jain, sons of Sh. Rameshwar Das Jain, resident of 99, Priya Enclave, delhi vide document Regd. No. 1176, Book No.1, Volume No. 759 on pages 168 to 173 in the office of Sub-Registrar, S.D. No. VIII at Geeta Colony, East District, Delhi."

4. In the case of K. I. George Vs. Mohd. Master (1999) 97

Company Cases 664, it has been said that the statutory

presumption available under Section 139 of Negotiable

Instruments Act, 1881 can be rebutted by the accused by

adducing evidence. So, the burden of proof is on the accused and

the evidence available on record will have to be appreciated by

bearing in mind the above fact regarding burden of proof.

Crl. M.C. No. 84 of 2007 Page 3

5. I am of the considered view that from the complaint

Annexure-P-1, prima facie case is made out against the petitioner

and therefore, neither the aforesaid complaint nor the order vide

which the petitioner has been summoned, suffers from any

illegality or infirmity.

6. The principles relating to exercise of jurisdiction under

section 482 of the Code of Criminal Procedure to quash

complaints and criminal proceedings as highlighted by the Apex

Court in the case of "Indian Oil Corporation vs. NEPC India Ltd.

and others" (2006) 6 SCC 736 are as under:-

i. A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint

Crl. M.C. No. 84 of 2007 Page 4 is warranted while examining prayer for quashing of a complaint.

ii. A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceedings is found to have been initiated with mala fide/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

iii. The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

iv. The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

v. A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; (c ) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the

Crl. M.C. No. 84 of 2007 Page 5 mere fact that the complaint relates to commercial transaction or breach of contract, for which a civil remedy is available or has been availed of, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

7. In the instant case, no case for invoking extraordinary

inherent jurisdiction under Section 482 of the Cr.P.C. is made out

in this case. Resultantly, Criminal M.C. No. Crl. M.C. No. 84/2007

is dismissed with the observation that anything stated herein

shall have no bearings on merits at trial of this case.

8. Crl. M.A. No. 269 of 2007 is disposed of as infructuous and

Crl.(M) No. 8616/2007 Crl.(M) No. 10964/2007 are without merit

and are dismissed as such.

9. This petition and aforesaid applications, are accordingly

disposed of.

Sunil Gaur, J.

March 24, 2009
rs




Crl. M.C. No. 84 of 2007                                            Page 6