Himachal Pradesh High Court
Zhenia Pharmaceuticals And Another vs Symbiosis Pharmaceuticals Pvt. Ltd on 22 August, 2024
Neutral Citation No. ( 2024:HHC:7182 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 415 of 2023
.
Reserved on: 7.8.2024
Date of Decision: 22.08.2024.
Zhenia Pharmaceuticals and another ...Petitioners
Versus
Symbiosis Pharmaceuticals Pvt. Ltd. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Petitioners : Mr. N.S. Chandel, Senior Advocate,
with Mr. Rajesh Verma, Advocate.
For the Respondent : Ms. Shalini Thakur, Advocate.
Rakesh Kainthla, Judge
The petitioners have filed the present petition for
quashing the complaint under Section 138 of the Negotiable
Instruments Act, 1881, titled Symbiosis Pharmaceuticals Pvt.
Ltd. versus Zhenia Pharmaceuticals and another, pending before
learned Judicial Magistrate First Class, Nahan, District Sirmour,
H.P. It has been asserted that petitioner No.1 is a partnership
Firm, which came into existence on 20.5.2016 between
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:7182 )
petitioner No.2 and one Jagbir Singh. Jagbir Singh was
responsible for conducting the day-to-day business of the Firm.
.
Petitioner No.2-Dr. Komal Khanna was only an Advisor. Jagbir
Singh was also a Director of Symbiosis Pharmaceuticals. He
surrendered 45% of the share capital in favour of petitioner
No.2. A fresh Partnership Deed was executed on 6.12.2018 in
which the share of petitioner No.2 was enhanced to 95% and the
share of Jagbir Singh was reduced to 5%. Some dispute arose
between petitioner No.2 and Jagbir Singh and it was decided that
Jagbir Singh would surrender his 5% shareholding with the plot
at Panchkula in favour of petitioner No.2. He would settle
pending liability of Zhenia Pharmaceuticals towards the
Company owned and promoted by him. Petitioner No.2 agreed to
pay ₹25.00 lacs to Jagbir Singh against a 5% share and transfer
the plot. It was also decided that petitioner No.2 would issue a
cheque of ₹25.00 lacs which would remain with the Mediator.
Petitioner No.2 issued a cheque of ₹25.00 lacs in favour of the
complainant, which is one of the companies promoted and
owned by Jagbir Singh. This cheque was to be kept with mediator
Vinay Aggarwal till the transfer of 5% share capital and
clearance of all the liabilities. Jagbir Singh declined to perform
Neutral Citation No. ( 2024:HHC:7182 )
his part of the agreement. The petitioner requested the Mediator
to return the cheque. The Mediator informed that he had
.
received a message from Jagbir Singh to meet him at Hotel
Western Court, Panchkula along with the cheque. Jagbir Singh
stole the cheque from the Mediator. The petitioner obtained the
CCTV Footage from Hotel Western Court, Panchkula showing
that Vinay Aggarwal had kept the cheque on the table and Jagbir
Singh had stolen the cheque in his absence. The cheque was
dated 11.11.2020 and was valid for three months. The petitioner
came to know from her bank that the cheque was presented by
the complainant with his bank and was dishonoured by the
banker of the petitioner on the ground of cutting/correction in
the date. Petitioner No.2 approached Police Station Panchkula
but no action was taken. Petitioner No.2 approached the Court of
learned CJM, Panchkula under Section 156(3) of Cr.P.C. and
learned CJM directed the police to register the FIR.
Consequently, FIR No. 42 of 2022, dated 23.2.2022 was
registered against Jagbir Singh. Jagbir Singh also filed an FIR
against the petitioner and the Mediator. The complainant issued
a notice to the petitioner and filed a complaint under Section 138
of the NI Act titled Symbiosis Pharmaceuticals Vs. Zhenia
Neutral Citation No. ( 2024:HHC:7182 )
Pharmaceuticals. The Court ordered the summoning of the
petitioner. A bare perusal of the complaint and the documents
.
annexed with it nowhere shows that the cheque was issued by
the petitioner to discharge the legal liability. Petitioner No.2 and
Jagbir Singh are the partners of Zhenia Pharmaceuticals. The
complainant did not file any complaint through Jagbir Singh but
filed it through the authorized signatory. Petitioner No.2 was
only an Advisor and Jagbir Singh was looking after the affairs of
the Firm. There was overwriting on the cheque. Original figure 11
was changed to 01 and the original year 2020 was changed to
2022. This overwriting was done to bring the cheque within the
period of its validity. Jagbir Singh did not place on record the
endorsement of the petitioner's bank, wherein it was mentioned
that the cheque was returned due to cutting/correction. He
obtained an endorsement of his bank 'Account blocked'.
Therefore, it was prayed that the present petition be allowed and
the complaint pending before the learned Trial Court be ordered
to be quashed.
2. Respondent No. 1/ Complainant filed a reply, taking
preliminary objection regarding lack of maintainability. The
contents of the petition were denied on merits; however, it was
Neutral Citation No. ( 2024:HHC:7182 )
admitted that Jagbir Singh is a Partner of the Firm and Director
of Symbiosis Pharmaceuticals Pvt. Ltd. The work was allotted to
.
the Firm in the good faith of Mr Jagbir Singh but the Firm failed
to make the payment to the Company. The allegations in the
complaint pertain to the personal dealings of the petitioner and
Jagbir Singh and do not concern the Firm and Company, who are
parties to the complaint. The Court cannot conduct a mini-trial
while deciding a petition under Section 482 of Cr.P.C. The
petitioner is claiming herself to be the partner of 95% share and
is claiming that Jagbir Singh is managing the affairs of the firm.
These pleas are contradictory to each other. There is a
presumption that the cheque was issued in discharge of the legal
liability and the burden is upon the accused to discharge the
same. The Court should not quash the FIR at a pre-trial stage
without affording an opportunity to prove the case by leading
evidence. Therefore, it was prayed that the present petition be
dismissed.
3. I have heard Mr. N.S. Chandel learned Senior Counsel
assisted by Mr Rajesh Verma, learned counsel for the petitioner-
accused and Ms Shalini Thakur, learned counsel for
respondent/complainant.
Neutral Citation No. ( 2024:HHC:7182 )
4. Mr. N.S. Chandel, learned Senior Counsel for the
petitioners submitted that the documents annexed to the
.
petition show that the cheque was dishonoured by the banker of
the accused with an endorsement "cutting/alteration'. This
memo was not produced by the complainant and the
complainant managed to get a false memo from its Bank. A
perusal of the cheque shows that there are material alterations
in the date. An endorsement was made on the reverse side of the
cheque stating the condition for presentation of the cheque. The
cheque was void because of the material alteration and it was
not issued to discharge the legal liability in view of the
endorsement made on the reverse side of the cheque. Therefore,
he prayed that the present petition be allowed and the complaint
pending before the learned Trial Court be quashed. He relied
upon the judgments of Jagdish Chandra Balai Vs. State of
Rajasthan 2024 (2) Civil Court Cases 319, Herman Castelino Vs.
Suresh Kudva 2022 STPL 10645 and H.T. Kenchegowda Vs. S.D.
Umesh 2019 STPL 10552 Karnataka in support of his case.
5. Ms. Shalini Thakur, learned counsel for the
respondent submitted that the complaint should not be quashed
at a threshold and that opportunity should be afforded to the
Neutral Citation No. ( 2024:HHC:7182 )
complainant to prove the case. The cheque carries with it a
presumption of consideration and the burden is upon the
.
accused to rebut the same, which can be done during the trial.
The Court cannot conduct a mini-trial to determine the
truthfulness or otherwise of the allegations made in the
complaint. She relied upon the judgments of the Central Bureau
of Investigation Vs. Aryan Singh etc. 2023 LiveLaw (SC) 292, Ratish
Babu Unnikrishnan Vs. The State (Govt. of NCT of Delhi) and
another 2022 LiveLaw (SC) 413 and Arpan Jain v. State, 2021 SCC
OnLine Del 4222 in support of her submission.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. The law regarding the exercise of jurisdiction under
Section 482 of Cr.P.C. was considered by the Hon'ble Supreme
Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it
was observed: -
9. The law with regard to the exercise of jurisdiction under
Section 482 of Cr. P.C. to quash complaints and criminal
proceedings has been succinctly summarized by this Court
in the case of Indian Oil Corporation v. NEPC India Limited
(2006) 6 SCC 736: 2006 INSC 4521 after considering the
earlier precedents. It will be apposite to refer to the
following observations of this Court in the said case,
which read thus:
Neutral Citation No. ( 2024:HHC:7182 )
"12. The principles relating to the exercise of jurisdiction
under Section 482 of the Code of Criminal Procedure to
quash complaints and criminal proceedings have been
stated and reiterated by this Court in several decisions. To
.
mention a few--Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC
692: 1988 SCC (Cri) 234], State of Haryana v. Bhajan
Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol
Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC
(Cri) 1059], Central Bureau of Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State
of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC
(Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC
259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P)
Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269: 2000 SCC (Cri)
615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000)
4 SCC 168: 2000 SCC (Cri) 786], M. Krishnan v. Vijay
Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19] and Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005)
1 SCC 122 : 2005 SCC (Cri) 283]. The principles, relevant to
our purpose are:
(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 is warranted while
examining prayer for quashing 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 proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or to
Neutral Citation No. ( 2024:HHC:7182 )
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 necessary
for making out the offence.
(v.) A given set of facts may make out : (a) purely a
civil wrong; (b) purely a criminal offence; or (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 mere fact that the
complaint relates to a commercial transaction or
breach of contract, for which a civil remedy is
available or has been availed, 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.
8. Similar is the judgment Maneesha Yadav v. State of
U.P., 2024 SCC OnLine SC 643, wherein it was held: -
12. We may gainfully refer to the following observations of this
Court in the case of State of Haryana v. Bhajan Lal1992 Supp (1)
SCC 335: 1990 INSC 363:
Neutral Citation No. ( 2024:HHC:7182 )
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
.
decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases
by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any court
or otherwise to secure the ends of justice, though it may not
be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
(1) Where the allegations made in the first
information report or 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
a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(4) Where the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
Neutral Citation No. ( 2024:HHC:7182 )
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
.
reach a just conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the Code
or the concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.
103. We also give a note of caution to the effect that
the power of quashing a criminal proceeding should
be exercised very sparingly and with circumspection
and that too in the rarest of rare cases; that the court
will not be justified in embarking upon an enquiry as
to the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that
the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to
its whim or caprice."
9. The present petition has to be considered as per the
parameters laid down by the Hon'ble Supreme Court.
10. Mr. N.S. Chandel, learned Senior Advocate for the
petitioner relied upon various documents to submit that the
contents of the complaint are false; however, it is impermissible
Neutral Citation No. ( 2024:HHC:7182 )
for the Court exercising jurisdiction under Section 482 of CrPC
to rely upon the document not annexed to the complaint. It was
.
laid down by the Hon'ble Supreme Court in MCD v. Ram Kishan
Rohtagi, (1983) 1 SCC 1: 1983 SCC (Cri) 115, that the proceedings
can be quashed if on the face of the complaint and the papers
accompanying the same no offence is constituted. It is not
permissible to add or subtract anything. It was observed:
"10. It is, therefore, manifestly clear that proceedings
against an accused in the initial stages can be quashed
only if on the face of the complaint or the papers
accompanying the same, no offence is constituted. In
other words, the test is that taking the allegations and the
complaint as they are, without adding or subtracting
anything, if no offence is made out then the High Court
will be justified in quashing the proceedings in exercise of
its powers under Section 482 of the present Code."
11. Madras High Court also held in Ganga Bai v. Shriram,
1990 SCC OnLine MP 213: ILR 1992 MP 964: 1991 Cri LJ 2018, that
the fresh evidence is not permissible or desirable in the
proceedings under Section 482 of Cr.P.C. It was observed:
"Proceedings under Section 482, Cr.P.C. cannot be
allowed to be converted into a full-dressed trial. Shri
Maheshwari filed a photostate copy of an order dated
28.7.1983, passed in Criminal Case No. 1005 of 1977, to
which the present petitioner was not a party. Fresh
evidence at this stage is neither permissible nor desirable. The
respondent by filing this document is virtually introducing
Neutral Citation No. ( 2024:HHC:7182 )
additional evidence, which is not the object of Section 482,
Cr.P.C."
12. Andhra Pradesh High Court also took a similar view
.
in Bharat Metal Box Company Limited, Hyderabad and Others vs. G.
K. Strips Private Limited and another, 2004 STPL 43 AP, and held:
"9. This Court can only look into the complaint and the
documents filed along with it and the sworn statements
of the witnesses if any recorded. While judging the
correctness of the proceedings, it cannot look into the
documents, which are not filed before the lower Court.
Section 482 Cr.PC debars the Court to look into fresh
documents, in view of the principles laid down by the
Supreme Court in State of Karnataka v. M. Devendrappa
and another, 2002 (1) Supreme 192. The relevant portion of
the said judgment reads as follows:
"The complaint has to be read as a whole. If it
appears that on consideration of the allegations, in
the light of the statement made on oath of the
complainant that the ingredients of the offence or
offences are disclosed and there is no material to
show that the complaint is mala fide, frivolous or
vexatious, in that event there would be no
justification for interference by the High Court.
When information is lodged at the Police Station
and an offence is registered, then the mala fides of
the informant would be of secondary importance. It
is the material collected during the investigation
and evidence led in Court, which decides the fate of
the accused person. The allegations of mala fides
against the informant are of no consequence and
cannot by itself be the basis for quashing the
proceedings".
Neutral Citation No. ( 2024:HHC:7182 )
13. A similar view was taken in Mahendra K.C. v. State of
Karnataka, (2022) 2 SCC 129: (2022) 1 SCC (Cri) 401 wherein it was
.
observed on page 142:
"16. ... the test to be applied is whether the allegations in
the complaint as they stand, without adding or detracting
from the complaint, prima facie establish the ingredients
of the offence alleged. At this stage, the High Court
cannot test the veracity of the allegations nor for that
matter can it proceed in the manner that a judge
conducting a trial would, on the basis of the evidence
collected during the course of the trial."
14. This position was reiterated in Supriya Jain v. State of
Haryana, (2023) 7 SCC 711: 2023 SCC OnLine SC 765wherein it was
held:
13. All these documents which the petitioner seeks to rely
on, if genuine, could be helpful for her defence at the trial
but the same are not material at the stage of deciding
whether quashing as prayed for by her before the High
Court was warranted or not. We, therefore, see no reason
to place any reliance on these three documents.
15. A similar view was taken in Iveco Magirus
Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya, (2024) 2
SCC 86:2023 SCC OnLine SC 1258 wherein it was observed:
"63. Adverting to the aspect of exercise of jurisdiction by
the High Courts under Section 482CrPC, in a case where
the offence of defamation is claimed by the accused to
have not been committed based on any of the Exceptions
and a prayer for quashing is made, law seems to be well
settled that the High Courts can go no further and enlarge the
Neutral Citation No. ( 2024:HHC:7182 )
scope of inquiry if the accused seeks to rely on materials
which were not there before the Magistrate. This is based on
the simple proposition that what the Magistrate could not do,
the High Courts may not do. We may not be understood to
.
undermine the High Courts' powers saved by Section
482CrPC; such powers are always available to be
exercised ex debito justitiae i.e. to do real and substantial
justice for the administration of which alone the High
Courts exist. However, the tests laid down for quashing
an FIR or criminal proceedings arising from a police
report by the High Courts in the exercise of jurisdiction
under Section 482CrPC not being substantially different
from the tests laid down for quashing a process issued
under Section 204 read with Section 200, the High Courts
on recording due satisfaction are empowered to interfere
if on a reading of the complaint, the substance of
statements on oath of the complainant and the witness, if
any, and documentary evidence as produced, no offence
is made out and that proceedings, if allowed to continue,
would amount to an abuse of the legal process. This too,
would be impermissible if the justice of a given case does
not overwhelmingly so demand." (Emphasis supplied)
16. Therefore, it is not permissible to consider the
documents filed by any party, which do not form part of the
record of the learned Trial Court.
17. It was submitted that a bare perusal of the cheque
shows the material allegation regarding the date, the cheque
would become void due to the material alterations. Reliance was
placed upon the judgment of Jagdish Chandra (supra), Herman
Castelino (supra) and H.T. Kenchegowda (supra). All these
judgments were delivered after a full-fledged trial. It was held
Neutral Citation No. ( 2024:HHC:7182 )
by the Delhi High Court in Arpan Jain (supra) that the complaint
cannot be quashed on the ground that there is a material
.
alteration in the cheque because it is a question of fact whether
the alteration was made by the drawer himself or with his
consent. It was observed:-
"6. The short issue involved is of applicability of Section
87 NI Act to the facts of the present case and whether the
proceedings pending before the Trial Court are liable to be
quashed in view of the submissions made on behalf of the
petitioners. At this stage, I deem it apposite to refer to
Section 87 NI Act, which reads as under: --
"87. Effect of material alteration. --Any material
alteration of negotiable instrument renders the same void
as against anyone who is a party thereto at the time of
making such alteration and does not consent thereto
unless it was made in order to carry out the common
intention of the original parties;
Alteration by indorsee, and any such alteration, if made
by an indorsee, discharges his indorser from all liability to
him in respect of the consideration thereof.
The provisions of this section are subject to those of
sections 20, 49, 86 and 125."
7. Section 87 NI Act consists of two parts. The first part
indicates that in case the alteration is made with the
consent of both parties, they would be disentitled to
complain against such alteration. Only when a cheque is
altered by the payee or holder without the consent of the
drawer, the issue of the cheque becoming void would
arise. In the present case, it is contended that the material
alteration was done in the cheque by the complainant
without the consent of the petitioners. On the other hand,
in the complaint, it has been alleged that it was petitioner
Neutral Citation No. ( 2024:HHC:7182 )
No. 1 who handed over the cheque containing the material
alteration. From above, it is apparent that the factum of
'who carried out the material alteration' is disputed and a
disputed question of fact cannot be gone into by this
.
Court while exercising its powers under Section 482
Cr.P.C. The petitioners would need to adduce evidence in
the trial in support of their assertion and to rebut the
presumption. This Court deems it profitable to allude to
the following observations of the Supreme Court in Bir
Singh v. Mukesh Kumar reported as (2019) 4 SCC 197.
"33. A meaningful reading of the provisions of the
Negotiable Instruments Act including, in particular,
Sections 20, 87 and 139, makes it amply clear that a
person who signs a cheque and makes it over to the payee
remains liable unless he adduces evidence to rebut the
presumption that the cheque had been issued for payment
of a debt or in discharge of a liability. It is immaterial that
the cheque may have been filled in by any person other
than the drawer if the cheque is duly signed by the drawer.
If the cheque is otherwise valid, the penal provisions of
Section 138 would be attracted."
8. In Rajeshbhai Muljibhai Patel v. State of Gujarat reported
as (2020) 3 SCC 794, the Supreme Court has observed that
presumptions under Section 139 NI Act and Section 118A
Indian Evidence Act are statutory presumptions which
can be rebutted by adducing evidence. It has also been
observed that when disputed questions of facts are
involved which need to be adjudicated after the parties
adduce evidence, the High Court ought not to exercise its
powers under Section 482 Cr.P.C. to quash the
proceedings arising out of Section 138 NI Act. To a similar
extent are the observations of the Supreme Court
in Kaptan Singh v. State of Uttar Pradesh reported as 2021
SCC OnLine SC 580, wherein it has been reiterated that
appreciation of evidence is impermissible at the stage of
quashing of proceedings in the exercise of powers under
Section 482 Cr.P.C.
Neutral Citation No. ( 2024:HHC:7182 )
9. Learned counsel for the petitioners has placed reliance
on the decision in Veera Exports (Supra) but the same is
entirely misplaced. In the captioned case also, while
considering the scope of Section 87 NI Act, the Supreme
.
Court observed that the party who consents to the
alterations as well as the party who has made the
alterations are disentitled to complain against such
alteration. It was further observed that even if the payee
or holder of the cheque made the alteration with the
consent of the drawer thereof, such alteration also cannot
be used as a ground to resist the right of the payee or the
holder thereof. The Supreme Court went on to observe
that whether the alteration was made by the drawer
himself or with his consent is a disputed question of fact,
which needs to be established by adducing evidence
during trial."
18. I respectfully agree with the judgment of the Delhi
High Court and hold that it is impermissible for the Court to
quash the complaint on the ground of material alteration at the
threshold.
19. Reference was made to the endorsement on the
reverse of the cheque wherein it was written: "subject to the
submission of registry of plot of concerned Firm/security
purpose". Again, it is a question of fact whether the condition
mentioned in the reverse of the cheque was fulfilled or not and
the complaint cannot be quashed due to the endorsement made
on the same.
Neutral Citation No. ( 2024:HHC:7182 )
20. It was rightly submitted on behalf of the complainant
that the cheque carries with it a presumption that it was issued
.
in discharge of legal liability and the burden lies upon the
accused to rebut this presumption; hence, the complaint cannot
be quashed at the threshold. It was laid down by the Hon'ble
Supreme Court in Rathish Babu Unnikrishnan v. State (NCT of
Delhi), 2022 SCC OnLine SC 513, that the burden of proving that
there is no existing debt of liability is to be discharged in the
trial and the Court has to consider the presumption under
Section 139 of NI Act in favour of the holder while deciding the
petition under Section 482 of Cr.P.C. It was observed:
"10. It is also relevant to bear in mind that the burden of
proving that there is no existing debt or liability, is to be
discharged in the trial. For a two judges Bench in M.M.T.C.
Ltd. v. Medchl Chemicals and Pharma (P) Ltd. (2002) 1 SCC
234, Justice S.N. Variava made the following pertinent
observation on this aspect: --
"17. There is therefore no requirement that the
complainant must specifically allege in the
complaint that there was a subsisting liability. The
burden of proving that there was no existing debt or
liability was on the respondents. This they have to
discharge in the trial. At this stage, merely on the
basis of averments in the petitions filed by them the
High Court could not have concluded that there was
no existing debt or liability."
11. The legal presumption of the cheque having been
issued in the discharge of liability must also receive due
Neutral Citation No. ( 2024:HHC:7182 )
weightage. In a situation where the accused moves the
Court for quashing even before the trial has commenced,
the Court's approach should be careful enough not to
.
prematurely extinguish the case by disregarding the legal
presumption which supports the complaint. The opinion
of Justice K.G. Balakrishnan for a three-judge Bench
in Rangappa v. Sri Mohan (2010) 11 SCC 441 would at this
stage, deserve our attention:--
"26. ... we are in agreement with the respondent
claimant that the presumption mandated by Section
139 of the Act does indeed include the existence of a
legally enforceable debt or liability. As noted in the
citations, this is of course in the nature of a
rebuttable presumption and it is open to the
accused to raise a defence wherein the existence of a
legally enforceable debt or liability can be
contested. However, there can be no doubt that
there is an initial presumption which favours the
complainant."
12. At any rate, whenever facts are disputed the truth
should be allowed to emerge by weighing the evidence. On
this aspect, we may benefit by referring to the ratio
in Rajeshbhai Muljibhai Patel v. State of Gujarat (2020) 3
SCC 794 where the following pertinent opinion was given
by Justice R. Banumathi: --
"22. .............. When disputed questions of facts are
involved which need to be adjudicated after the
parties adduce evidence, the complaint under
Section 138 of the NI Act ought not to have been
quashed by the High Court by taking recourse to
Section 482 CrPC. Though, the Court has the power
to quash the criminal complaint filed under Section
138 of the NI Act on legal issues like limitation, etc.
criminal complaint filed under Section 138 of the NI
Act against Yogeshbhai ought not to have been
quashed merely on the ground that there are inter
se disputes between Appellant 3 and Respondent 2.
Neutral Citation No. ( 2024:HHC:7182 )
Without keeping in view, the statutory presumption
raised under Section 139 of the NI Act, the High
Court, in our view, committed a serious error in
.
quashing the criminal complaint in CC No. 367 of
2016 filed under Section 138 of the NI Act."
13. Bearing in mind the principles for the exercise of
jurisdiction in a proceeding for quashing, let us now turn
to the materials in this case. On careful reading of the
complaint and the order passed by the Magistrate, what is
discernible is that a possible view is taken that the
cheques drawn were, in the discharge of a debt for the
purchase of shares. In any case, when there is a legal
presumption, it would not be judicious for the quashing
Court to carry out a detailed enquiry on the facts alleged,
without first permitting the trial Court to evaluate the
evidence of the parties. The quashing Court should not
take upon itself, the burden of separating the wheat from
the chaff where facts are contested. To say it differently,
the quashing proceedings must not become an expedition
into the merits of factual dispute, so as to conclusively
vindicate either the complainant or the defence.
14. The parameters for invoking the inherent jurisdiction
of the Court to quash the criminal proceedings under
S.482 CrPC, have been spelt out by Justice S. Ratnavel
Pandian for the two judges' bench in State of
Haryana v. Bhajan Lal 1992 Supp (1) SCC 335: AIR 1992 SC
604, and the suggested precautionary principles serve as
good law even today, for invocation of power under
Section 482 of the Cr.P.C.
"103. We also give a note of caution to the effect
that the power of quashing a criminal proceeding
should be exercised very sparingly and with
circumspection and that too in the rarest of rare
cases; that the court will not be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in
the FIR or the complaint and that the extraordinary
Neutral Citation No. ( 2024:HHC:7182 )
or inherent powers do not confer an arbitrary
jurisdiction on the court to act according to its
whim or caprice."
.
15. In the impugned judgment, the learned Judge had
rightly relied upon the opinion of Justice J.S. Khehar for a
Division Bench in Rajiv Thapar (supra), which succinctly
expresses the following relevant parameters to be
considered by the quashing Court, at the stage of issuing
process, committal, or framing of charges,
"28. The High Court, in the exercise of its
jurisdiction under Section 482 CrPC, must make a
just and rightful choice. This is not a stage of
evaluating the truthfulness or otherwise of the
allegations levelled by the prosecution/complainant
against the accused. Likewise, it is not a stage for
determining how weighty the defences raised on
behalf of the accused are. Even if the accused is
successful in showing some suspicion or doubt, in
the allegations levelled by the
prosecution/complainant, it would be
impermissible to discharge the accused before trial.
This is so because it would result in giving finality
to the accusations levelled by the
prosecution/complainant, without allowing the
prosecution or the complainant to adduce evidence
to substantiate the same."
16. The proposition of law as set out above makes it
abundantly clear that the Court should be slow to grant
the relief of quashing a complaint at a pre-trial stage,
when the factual controversy is in the realm of possibility
particularly because of the legal presumption, as in this
matter. What is also of note is that the factual defence
without having to adduce any evidence needs to be of an
unimpeachable quality, so as to altogether disprove the
allegations made in the complaint.
17. The consequences of scuttling the criminal process at
a pre-trial stage can be grave and irreparable. Quashing
Neutral Citation No. ( 2024:HHC:7182 )
proceedings at preliminary stages will result in finality
without the parties having had an opportunity to adduce
evidence and the consequence then is that the proper
.
forum i.e., the trial Court is ousted from weighing the
material evidence. If this is allowed, the accused may be
given an un-merited advantage in the criminal process.
Also because of the legal presumption, when the cheque
and the signature are not disputed by the appellant, the
balance of convenience at this stage is in favour of the
complainant/prosecution, as the accused will have due
opportunity to adduce defence evidence during the trial,
to rebut the presumption.
18. Situated thus, to non-suit the complainant, at the
stage of the summoning order, when the factual
controversy is yet to be canvassed and considered by the
trial court will not in our opinion be judicious. Based upon
a prima facie impression, an element of criminality
cannot entirely be ruled out here subject to the
determination by the trial Court. Therefore, when the
proceedings are at a nascent stage, the scuttling of the
criminal process is not merited."
21. Thus, the complaint cannot be quashed on the
grounds that it was issued without consideration and the
conditions for its presentation were not satisfied.
22. It was submitted that the complaint does not
mention that the cheque was issued in the discharge of the legal
liability. It is not correct because para-4 of the complaint
specifically mentions that the cheque was issued to discharge in
part valid, legally existing enforceable debt and liability towards
the complainant on account of the material purchased by the
Neutral Citation No. ( 2024:HHC:7182 )
accused from the complainant. The accused admitted and
acknowledged the legally impermissible debt and liability
.
towards the complainant. Hence, the submission that the
complaint is silent regarding the existence of legally enforceable
data is not acceptable.
23. It was submitted that the memo of dishonour of the
bank of the accused was not placed on record and there is
nothing on record to show that the cheque was dishonoured due
to insufficient funds. The complainant has filed the return
memo of the State Bank of India, in which the reason for
dishonour of cheque has been mentioned as "account blocked".
There is a force in the submission of learned counsel for the
complainant that truthfulness or otherwise of the documents
are to be seen during the trial and cannot be determined at this
stage. It was laid down by the Hon'ble Supreme Court in
Priyanka Jaiswal vs. State of Jharkhand, 2024 SCC OnLine SC 685
that the Court exercises extra-ordinary jurisdiction under
Section 482 of Cr.P.C. and cannot conduct a mini-trial or enter
into an appreciation of an evidence of a particular case. It was
observed:-
Neutral Citation No. ( 2024:HHC:7182 )
"13. We say so for reasons more than one. This Court in
catena of Judgments has consistently held that at the time
of examining the prayer for quashing of the criminal
proceedings, the court exercising extra-ordinary
.
jurisdiction can neither undertake to conduct a mini-trial
nor enter into appreciation of evidence of a particular
case. The correctness or otherwise of the allegations made
in the complaint cannot be examined on the touchstone of
the probable defence that the accused may raise to stave
off the prosecution and any such misadventure by the
Courts resulting in proceedings being quashed would be
set aside. This Court in the case of Akhil Sharda 2022 SCC
OnLine SC 820 held to the following effect:
"28. Having gone through the impugned
judgment and order passed by the High Court by
which the High Court has set aside the criminal
proceedings in the exercise of powers under
Section 482 Cr. P.C., it appears that the High
Court has virtually conducted a mini-trial, which
as such is not permissible at this stage and while
deciding the application under Section 482 Cr.
P.C. As observed and held by this Court in a
catena of decisions no mini-trial can be
conducted by the High Court in the exercise of
powers under Section 482 Cr. P.C. jurisdiction
and at the stage of deciding the application under
Section 482 Cr. P.C., the High Court cannot get
into appreciation of evidence of the particular
case being considered."
24. A similar view was taken in Maneesha Yadav v. State of
U.P., 2024 SCC OnLine SC 643 wherein it was held that: -
"13. As has already been observed hereinabove, the Court
would not be justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint at the stage
of quashing of the proceedings under Section 482 Cr.
Neutral Citation No. ( 2024:HHC:7182 )
P.C. However, the allegations made in the FIR/complaint,
if taken at its face value, must disclose the commission of
an offence and make out a case against the accused. At the
.
cost of repetition, in the present case, the allegations
made in the FIR/complaint even if taken at its face value,
do not disclose the commission of an offence or make out
a case against the accused. We are of the considered view
that the present case would fall under Category-3 of the
categories enumerated by this Court in the case of Bhajan
Lal (supra).
14. We may gainfully refer to the observations of this
Court in the case of Anand Kumar Mohatta v. State (NCT of
Delhi), Department of Home(2019) 11 SCC 706: 2018 INSC
1060:
"14. First, we would like to deal with the submission
of the learned Senior Counsel for Respondent 2 that
once the charge sheet is filed, the petition for
quashing of FIR is untenable. We do not see any
merit in this submission, keeping in mind the
position of this Court in Joseph Salvaraj A. v. State of
Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7
SCC 59: (2011) 3 SCC (Cri) 23]. In Joseph Salvaraj
A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC
59: (2011) 3 SCC (Cri) 23], this Court while deciding
the question of whether the High Court could
entertain the Section 482 petition for quashing of
FIR when the charge-sheet was filed by the police
during the pendency of the Section 482 petition,
observed : (SCC p. 63, para 16)
"16. Thus, the general conspectus of the
various sections under which the appellant
is being charged and is to be prosecuted
would show that the same are not made out
even prima facie from the complainant's
FIR. Even if the charge sheet had been filed,
the learned Single Judge [Joesph Saivaraj
A. v. State of Gujarat, 2007 SCC OnLine Guj
Neutral Citation No. ( 2024:HHC:7182 )
365] could have still examined whether the
offences alleged to have been committed by
the appellant were prima facie made out
from the complainant's FIR, charge-sheet,
.
documents, etc. or not."
25. Hence, it is not permissible for the Court to go into
the truthfulness or otherwise of the allegations made in the
complaint.
26. It was submitted that the petitioner is not
responsible to the Firm for its affairs and Jasbir Singh was in
charge of the same. Again, it is a disputed question of fact. The
complainant has specifically asserted in the complaint that the
cheque is signed by the petitioner. Hence, the petitioner is liable
for the dishonour of the cheque being authorized signatory.
27. No other point was urged.
28. Hence, it is not permissible to quash the complaint at
the initial stage. Consequently, the present petition fails and the
same is dismissed.
29. The parties through their respective learned counsel
are directed to appear before learned Trial Court on 9.9.2024.
The records be returned forthwith.
Neutral Citation No. ( 2024:HHC:7182 )
30. The observation made herein before shall remain
confined to the disposal of the petition and will have no bearing,
.
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
22nd August, 2024
(Chander)
r to
