Delhi High Court
Rajendra Mishra vs Pramod Nischal on 7 August, 2018
$~13
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 7th August, 2018
+ CRL.M.C. 3343/2015 and Crl.M.A.11946/2015
RAJENDRA MISHRA ..... Petitioner
Through: Mr. Satish Tamta, Senior Advocate
with Mr. Udayan Khandelwal,
Advocate
versus
PRAMOD NISCHAL ..... Respondent
Through: Mr. Arun Nischal, AR for the
Respondent
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner stands summoned as an accused before the court
of Metropolitan Magistrate in terms of order dated 18.04.2015 passed
on the criminal complaint dated 15.04.2015 of the respondent (the
complainant) alleging offence under Section 138 of the Negotiable
Instruments Act, 1881 in relation to a cheque No.347241 dated
20.02.2015 for Rs.30,000/- drawn against his account with Axis Bank
Limited, Vasant Kunj, new Delhi-110 070. He has approached this
court by the petition at hand invoking Article 227 of the Constitution
of India and the inherent power under Section 482 of the Code of
Criminal Procedure, 1973 to seek quashing of the said proceedings,
contending that no case for such criminal action on the basis of
averments in the criminal complaint was made out and, consequently,
the summoning order is in the nature of abuse of the process of law.
2. The respondent is represented by her son (the attorney) in these
proceedings.
3. Both sides have been heard and the record has been perused.
4. Going by the averments in the criminal complaint, it appears
that sons of the complainant, namely, Ashish Nischal and Arun
Nischal (the second said son being the attorney, present before the
court) are advocates practicing in the Courts and Tribunals in Delhi. It
appears that the petitioner had engaged the said sons of the
complainant for representing him in some litigation before Central
Administrative Tribunal (Principal Bench) at New Delhi and, in that
context, professional fees of Rs.50,000/- was settled to be paid by him
to the said sons (his advocates). Against the said arrangement,
Rs.20,000/- stood paid on 25.04.2015, the balance Rs.30,000/- having
been agreed to be paid before the date of hearing next fixed before the
tribunal.
5. It is alleged in the complaint that on 10.02.2015, the petitioner
handed over afore mentioned cheque (post dated cheque) and upon the
"son of the complainant" asking him to fill it in the name of his
mother, i.e., the complainant, the cheque was accordingly issued in the
name of the mother, i.e., the complainant. The cheque, on being
presented at the bank, was returned unpaid with reasons "payment
stopped by drawer". A legal notice demanding the payment of money
followed, but no payment having been made, the criminal complaint
was filed.
6. Undoubtedly, the statutory provision contained in Section 139
of the Negotiable Instruments Act, 1881 gives rise to a presumption,
"unless contrary is proved" that the holder of the cheque had received
the cheque of the nature mentioned in Section 138 "for the discharge,
in whole or in part, of any debt or other liability". It has to be borne
in mind that in order to maintain and bring home a case for offence
under Section 138 of the Negotiable Instruments Act, 1881, aside from
proving other facts like failure of the cheque upon presentation and
default in payment despite demand notice, it is the onus of the
complainant to also prove that the cheque was issued "for the
discharge, in whole or in part, of any debt or other liability".
7. Ordinarily, the opportunity to rebut the presumption raised by
Section 139 of the N.I. Act would be exercised and availed of by the
accused at the trial by attempting to discredit the evidence of the
complainant or by leading some positive evidence in rebuttal. In the
present case, however, even going by the averments in the criminal
complaint, it is clear from the word go that there was no liability due
to the complainant from the petitioner, i.e., the person who has been
summoned as an accused. The complainant had no arrangement with
the petitioner. She had not rendered any service to him. It is her sons
who were engaged by him and the payment was due on account of
professional services rendered by them to the petitioner. The
judgment of the Supreme Court dated 19.03.2015 rendered in "HMT
Watches Ltd. vs. M.A. Abida & Anr., Criminal Appeal No.471/2015, is
distinguishable since the present one is not a case which is dependent
upon "factual defences" which are "disputed".
8. In these circumstances, the issuance of the cheque in the name
of the mother itself is questionable. Be that as it may, since the case
presented by the complainant itself shows there being no debt or other
liability, the prosecution on the criminal complaint aforesaid against
the petitioner is impermissible.
9. For the foregoing reasons, the petition is allowed.
10. The proceedings in the criminal complaint case against the
petitioner in the aforementioned cases are hereby quashed.
11. Pending application also stands disposed of.
R.K.GAUBA, J.
AUGUTST 07, 2018
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