Santosh Mandhani Another vs Govt. Of Nct Of Delhi & Anr.
2010 Latest Caselaw 798 Del

               HIGH COURT OF DELHI : NEW DELHI
       Judgment reserved on: February 08, 2010
       Judgment pronounced on: February 10, 2010
+                      Crl. M.C. No. 4251 of 2009
                                 &
                       Crl. M.A. No. 14516 of 2009


%      Santosh Mandhani Another     ...        Petitioners
                 Through: Mr. Anurag Modi, Advocate

                                 versus

       Govt. of NCT of Delhi & Anr.           ...  Respondents
                  Through: Mr. Amit Sharma, Additional Public
                             Prosecutor for State.

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.     Quashing of criminal complaint under Section 138 of the

Negotiable Instruments Act, 1888, pertaining to dishonouring

of cheques of Rupees seventeen lacs or so, is sought in this

petition by the petitioner/accused by asserting that a civil

litigation regarding the cheques in question is pending and the

present case is not of dishonouring of cheque but is a case of

'stop payment' of the cheques and the cheques in question

Crl.M.C. No. 4251 of 2009                                 Page 1
 were not issued in discharge of any legal debt and infact these

cheques have been misused, as the amount in these cheques

was left blank.


2.     Heard.


3.     Learned Counsel for the petitioner as drawn the attention

of this Court to show that in the complaint the breakup of the

amount of cheques in question is different than its breakup in

the civil suit, which is pending. It is the case of the petitioner

that he is no more all India distributor of M/S Ambalal Sarabhai

Enterprises Ltd. and he has handed over the unsold stock in

trade to the aforesaid enterprise and the initiation of the

present proceedings is an abuse of the process of the Court,

therefore, it deserves to be quashed.


4.     The parameters for invoking the inherent jurisdiction of

this Court are quite limited. Apex Court in the case of „Inder

Mohan Goswami & Anr. Vs. State of Uttaranchal & Others‟, AIR

2008 SC 251, has held as under:-


               "Inherent powers under Section 482 Cr.P.C. though
        wide have to be exercised sparingly, carefully and with
        great caution and only when such exercise is justified by
        the tests specifically laid down in this section itself.
        Authority of the court exists for the advancement of
        justice. If any abuse of the process leading to injustice is
        brought to the notice of the court, then the Court would be
        justified in preventing injustice by invoking inherent
        powers in absence of specific provisions in the Statute."


Crl.M.C. No. 4251 of 2009                                           Page 2
 5.      The     question    raised   herein   before   this   Court    are

essentially questions of fact, which cannot be pre-judged at

this stage and are required to be proved at trial. The benefit of

the discrepancy of the breakup of the amount, as given in the

complaint in question and in the civil suit is also a question of

fact.      Prima facie it cannot be said by any stretch of

imagination that if the complaint in question is taken to be true

then no offence is made out.


6.      In view of the aforesaid, no case for invoking inherent

jurisdiction of this Court is made out, as the issuance of

cheques in question raises a statutory presumption under

Section 139 of the Negotiable Instruments Act, 1888, against

the petitioner, which ofcourse is rebuttable.


7.      Resultantly, this petition and the pending application is

dismissed in limine while expressing no opinion on the merits

of this case.


                                                        Sunil Gaur, J.

February 10, 2010 rs

Crl.M.C. No. 4251 of 2009 Page 3