Delhi High Court
Veena Rani vs Renu Kapoor on 20 July, 2016
45# $
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2522/2016
% Decided on: 20th July, 2016
VEENA RANI ..... Petitioner
Represented by: Mr. Vijay Chopra, Advocate.
versus
RENU KAPOOR ..... Respondent
Represented by: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl. M.A. No. 10811/2016 (Exemption)
Allowed, subject to all just exceptions.
CRL.M.C. 2522/2016 and Crl. M.A. No. 10810/2016 (Stay)
1. By the present petition the petitioner seeks quashing of complaint No.
NI-1013/14 under Section 138 Negotiable Instruments Act, 1881 (in short
'NI Act') titled as Smt. Renu Kapoor vs. Smt. Veena and the proceedings
pursuant thereto.
2. Renu Kapoor filed a complaint under Section 138 NI Act alleging that
she had advanced a loan of `60,000/- to the petitioner who was her first
cousin for the operation of her mother in the form of loan which the
petitioner undertook to return in the month of February, 2012 and a sum of
`1.40 lakhs to her sister Smt. Madhubala. For repayment of loan of
`60,000/- the petitioner had issued post dated cheque bearing No. 493726
dated 1st February, 2012 for an amount of `60,000/- drawn on Canara Bank.
The said cheque was presented for encashment but the same was dishonored
vide memo dated 9th February, 2012 with the remark 'refer to drawer'. A
legal notice dated 24th February, 2012 was issued however, the same was
received back unserved with the endorsement 'adhura pata he'. The
respondent again presented the cheque which was dishonored on 15th March,
2012 with the remark 'contact drawer' and thereafter a statutory demand
notice dated 17th March, 2012 was issued through the counsel which was
duly received by the petitioner however, the loan amount was not repaid and
thus the complaint.
3. The respondent/complainant examined herself and exhibited the
documents. On summons being issued the petitioner entered appearance and
sought recalling of the summoning order/dropping of the complaint. The
plea taken by the petitioner in the application was that no statutory notice
was served at all and no notice was dispatched at the correct address.
Further there was no existing debt or liability at the time of presentation of
the cheque for encashment, the husband of the respondent/complainant was a
money lender and had obtained the amount written and signed blank cheque
in question from the petitioner on 3rd May, 2008 under the influence and
trust being brother-in-law, which he misused. The amount due to the
respondent has already been paid to her husband in her presence at their
residence. However, the cheque was not returned on the pretext that the
same was misplaced. Thereafter the husband of the respondent in collusion
with the respondent and her brother misused the cheque and filed the
complaint which is an abuse of the process of law. The petitioner also filed
an affidavit in defence reiterating the averments in the application for
recalling of the summoning order.
4. Vide the order dated 5th April, 2006 the learned Metropolitan
Magistrate dismissed the application filed by the petitioner challenging the
order of summoning noting therein that the perusal of the record reflects that
firstly the complainant had placed on record speed post receipt as well the
duly served AD card on record during the pre-summoning evidence which
supports the factum of service of statutory notice and the cheque return
memo Ex.CW-1/C which was dishonored on the ground of 'refer to drawer'.
Thus there was prima facie sufficient material to raise presumption of
outstanding liability against the petitioner and due service of statutory notice,
thus the Court was not entitled to review its own order of summoning.
5. Before this Court learned counsel for the petitioner argues that an old
cheque was lying with the respondent/complainant wherein the date was
filled up later on which is evident from difference in hand writing on the date
and the account number. A perusal of the cheque would show that the date
has been filled up with a different pen and in a different ink. Hence, the
defence of the petitioner clearly shows that the complaint was false, mala
fide and the proceedings qua the petitioner are liable to be dropped.
Reliance is placed on para -23 of the decision reported as AIR 2015 SC 675
Pooja Ravinder Devidasani vs. State of Maharashtra and another.
6. In Pooja Ravinder Devidasani (supra) the Supreme Court noted its
earlier decision in reported as 2014 AIR SCW 6328 Gunamala Sales Pvt.
Ltd. vs. Anu Mehta, as under:
"23. In Gunmala Sales (P) Ltd. (2014) AIR SCW 6238)
(supra) on which the learned counsel for the respondents
has heavily relied, this Court at para 33 (c) held:
"In the facts of a given case, on an overall reading of the
complaint, the High Court may, despite the presence of the
basic averment, quash the complaint because of the absence
of more particulars about the role of the Director in the
complaint. It may do so having come across some
unimpeachable, incontrovertible evidence which is beyond
suspicion or doubt or totally acceptable circumstances
which may clearly indicate that the Director could not have
been concerned with the issuance of cheques and asking him
to stand the trial would be abuse of process of court.
Despite the presence of basic averment, it may come to a
conclusion that no case is made out against the Director.
Take for instance a case of a Director suffering from a
terminal illness who was bedridden at the relevant time or a
Director who had resigned long before issuance of cheques.
In such cases, if the High Court is convinced that
prosecuting such a Director is merely an arm-twisting
tactic, the High Court may quash the proceedings. It bears
repetition to state that to establish such case
unimpeachable, incontrovertible evidence which is beyond
suspicion or doubt or some totally acceptable circumstances
will have to be brought to the notice of the High Court. Such
cases may be few and far between but the possibility of such
a case being there cannot be ruled out."
(emphasis supplied)
7. Indubitably in case on the face of it the complaint does not disclose
the ingredients of an offence to be made out against the accused or there is
some evidence placed by the accused before the Court which is
unimpeachable, incontrovertible or beyond suspicion, then the Court has
the jurisdiction to drop the proceedings since no case is made out against the
accused.
8. In the present case, the petitioner seeks appreciation of defence
evidence by this Court by pointing out the change in the ink, that the cheque
book was issued in the year 2008 and it was an old cheque. I am afraid that
this piecemeal appreciation of evidence cannot be done by the High Court in
exercise of its jurisdiction under Section 482 Cr.P.C. The arguments raised
by the petitioner will have to be considered by the learned Trial Court after
he has cross-examined the complainant/witnesses and/or led defence
evidence.
9. I find no merit in the present petition.
10. Petition and application are dismissed.
(MUKTA GUPTA)
JUDGE
JULY 20, 2016
'vn'
