Delhi High Court

Rajeev Bhalla vs State & Anr. on 1 March, 2013

Author: Kailash Gambhir

IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CRL.M.C. 2870/2012
Rajeev Bhalla
                                                                  ..... Appellant
                           Through:Ms. Iti Sharma

                           versus

State & Anr.                                               ..... Respondent
                    Through: Mr. Chander M. Maini


         CORAM:
         HON'BLE MR. JUSTICE KAILASH GAMBHIR
              ORDER

              %          1.03.2013
CRL.M.C. NO. 2870/2012

1. By this Petition filed under Section 482 Cr.P.C , the petitioner seeks

quashing of Complaint bearing CC No. 400/K/ 2012 filed by the

respondent no. 2 under section 138 of Negotiable Instrument Act, 1881

titled as Smt. Neeraj Chopra V. Sh. Rajeev Bhalla and also the

summoning order dated 01.05.2012, issued by the court of Sh. Chander

Mohan, Metropolitan Magistrate (Central), Tees Hazari Courts, Delhi.

2. Addressing arguments on the present petition, counsel for the

petitioner submits that respondent who is a complainant before the learned

Magistrate is the sister of the petitioner and the petitioner in good faith had

handed over three blank signed cheques to the respondent herein for the

purpose of payment of some insurance premium. Counsel further submits that

by a registered will dated 21.2.2005, the mother of the petitioner had

bequeathed all her moveable and immovable assets in favour of the petitioner

and therefore, there was no occasion for the petitioner to have issued a

cheque for a sum of Rs.30 lacs in favour of the respondent towards her

alleged share in the property. Counsel also submits that petitioner had

throughout been in possession of the residential house bearing flat no. L-138-

B, DDA Flats, Kalkaji, New Delhibut with a view to black mail the petitioner

and extract money from him, the respondent has filed a complaint Case under

Section 138 of the Negotiable Instruments Act, 1881 after misusing the

unused signed cheques of the petitioner. Counsel also submits that the

complaint case filed by the respondent is manifestly attended with malafide

designs and therefore, such an oblique and malice complaint is squarely

covered by the judgment of the Apex Court in the case of State of Haryana

Vs. Bhajan Lal, AIR1992SC604and the same merits dismissal. Counsel

also submits that complaint filed by the respondent is otherwise not

maintainable in the eyes of law as the same does not fulfil the other essential

ingredients of Section 138 of the Negotiable Instruments Act, 1881. Counsel

for the petitioner has also placed reliance on the judgment of the Apex Court

inPepsi Foods Ltd. and anr. Vs. Special Judicial Magistrate and Ors.

reported in AIR1998SC128 to support his arguments that the summoning of

an accused in a criminal complaint is a serious matter and therefore, the

machinery of criminal law should not be set in motion in cases of frolicsome

nature.

3. I have heard learned counsel for the parties and have also perused the

order passed by the learned Magistrate.

4. The issue raised by the petitioner in the present petition cannot be

appreciated at this stage as the same can be gone to only at the time of trial.

The respondent in her complaint has alleged that after she had sent a legal

notice with a request to the petitioner to settle the dispute with regard to the

said flat, thereafter, the parties had arrived at an oral settlement between

them, which led the petitioner to issue a cheque for a sum of Rs.30 lacs

towards the alleged share of the defendant in the said flat. It is also the case of

the complainant that she had also executed a relinquishment deed, NOC and

affidavit in favour of the petitioner with a view to relinquish her right in the

said flat. It is also the case of the complainant that the said cheque was

returned unpaid by the bank of the petitioner with the remarks "account

closed". It is also the case of the complainant that she had issued a legal

notice dated 15.3.2011 thereby calling upon the petitioner to make payment

of the said amount of the dishonoured cheque but in vain.

5. The said averments made by the complainant in her complaint prima

facie satisfy the ingredients of Section 138 of the Negotiable Instruments Act,

1881. But the truth and veracity of the said averments cannot be adjudged at

this stage, as the Petitioner has nowhere in his petition given any details

pertaining to the purpose of giving the aforesaid cheques or the details of the

alleged insurance policies or dates, thereby satisfying the court that these

cheques were given towards an advance premium for the insurance policy.

Therefore, to say that the petitioner had issued unsigned cheques for payment

of certain insurance premium or there was no oral settlement between the

parties to settle the dispute of flat are the issues, which can be best

appreciated at the time of trial and not in exercise of inherent jurisdiction of

this court under Section 482 Cr.P.C. The petitioner may have a good defence

to ultimately succeed in the said complaint case but at this stage, the court

has to prima facie consider the averments made in the complaint. Nothing

specific explicating the allegations has been put forth by the petitioner for the

purpose of handing over the said cheques to his sister.

6. It is well settled that for the purpose of quashing of a complaint or FIR,

the High Court cannot look into the defence of the accused. The Court is only

required to see whether on the basis of the averments made in the complaint

and the relevant particulars produced by the Complainant, there are grounds

for proceeding against the accused. Inherent power of quashing criminal

proceedings should be exercised very sparingly and with great

circumspection. It does not confer on the court to act arbitrarily as per its own

whims and caprice. At this stage, the Courts could not have gone into the

merits and reached a conclusion that there are no existing debt or liability and

quash the complaint. Therefore, the basic law is that the complaint under

Section 138 , Negotiable Instruments Act cannot be quashed by High Court

by taking recourse to Section 482 Cr.P.C, if disputed questions of facts are

involved which need to be adjudicated after respective evidence is led by the

parties before the trial court.

6. In the case of Signaps and Anr.Vs. Bumpy Udyog,149(2008)DLT185,

wherein the petitioner had filed a petition under Section 482 Cr.P.C for

quashing of a complaint under Section 138 of Negotiable Instruments Act,

1881,alleging that the complainant wilfully suppressed certain material facts

in the complaint and hence the petition deserves to be dismissed. This Court

held that the disputed facts forming the core issue of controversy, that if the

cheque was dishonoured or if it was delayed in presentation or for any

purpose there of etc. are facts which cannot be resolved under Section 482

Cr.P.C. The Hon'ble Court specifically held as under:

"9. It would also be a matter of evidence whether the cheque which was presented for payment was a blank cheque which subsequently filled up by the complainant or was in fact issued by the accused after the expiry of the agreement. These are disputed facts which cannot be resolved in proceedings under Section 482 CrPC but will have to await trial. The submission of the counsel for the petitioner that these are self-evident facts cannot be accepted. In Shanku Concretes the agreement in question was subsisting at the time of the presentation of the cheque in question. As far as the decision of the Andhra Pradesh High Court in Taher N. Khambat is concerned, it was in a criminal appeal against an acquittal and the High Court had at that stage the benefit of the evidence whether blank cheques had been subsequently filled up and presented for payment. Neither decision is Therefore of assistance to the petitioner here.

10. No ground is made out for interference by this court to quash the criminal proceedings in exercise of its powers under Section 482 Cr.P.C. It is however clarified that no observation made by this Court is intended to influence the findings that may be arrived at by the trial court upon an independent assessment of the evidence that comes on record before it.