Himachal Pradesh High Court

M/S Saphnix Life Sciences & Anr vs Asif Ali on 21 October, 2024

( 2024:HHC:9961 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No. 271 of 2022 Reserved on: 05.09.2024 Date of Decision: 21.10.2024.





           M/s Saphnix Life Sciences & Anr.                                         ...Petitioners

                                                  Versus

           Asif Ali                                                               ...Respondent


           Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No

For the Petitioner : Mr. Bimal Gupta, Senior Advocate, with Ms. Kusum Chaudhary, Advocate.

For the Respondent : Mr. Karan Singh Kanwar, Advocate.

Rakesh Kainthla, Judge

The petitioners (the accused before the learned Trial

Court) have filed the present petition for quashing the

proceedings in case No. 163 of 2020 pending in the Court of

learned Additional Chief Judicial Magistrate, Court No.1 Paonta

Sahib (learned Trial Court) titled Asif Ali versus M/s Saphnix

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Life Sciences. (Parties shall hereinafter be referred to in the

same manner as they were arrayed before the learned Trial

Court for convenience).

2. Briefly stated, the facts giving rise to the present

petition are that the complainant filed a complaint before the

learned Trial Court against the accused for the commission of an

offence punishable under Section 138 of the Negotiable

Instruments Act (NI Act). It was asserted that accused No.1 is a

partnership Firm dealing in the manufacturing of

pharmaceutical products. Accused No.2 was managing the

business of accused No.1 and was responsible for its day-to-day

affairs as a managing partner. The complainant deals with

the transport business. The accused Firm engaged the

complainant to provide transport facilities to it for 10 years

w.e.f. April 2016 till March 2025 on a lumpsum monthly freight

of ₹1,50,000/-. It was agreed that this freight would be

increased by 10% every year. The accused Firm defaulted on the

regular payment of the money. The complainant approached the

accused for the payment of the dues and the accused issued a

cheque of ₹ 49,21,961/- to the complainant for discharging their

legal liability. The complainant presented the cheque before his

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bank but it was dishonoured with an endorsement, "kindly

contact drawer/drawee bank". The accused also filed a criminal

complaint against the complainant before the police to put

pressure on him. The complainant sent a notice to the accused

asking them to pay the amount mentioned in the cheque within

15 days from the receipt of the notice but the amount was not

paid. Hence, the complaint was filed for taking action against

the accused.

3. Being aggrieved from the filing of the complaint, the

accused have filed the present petition for quashing of the

complaint. It was asserted that the complainant has been

working as an accountant/liaison officer with the accused since

2009. He used to look after and manage all the financial matters

of the accused Firm. The partners reposed full faith in him. He

was in possession of the letter head pad and stamp of the Firm.

He had one pick-up Jeep which was purchased by him in the

name of his brother Mohd. Aarif. The jeep was engaged for

transportation purposes under the name of M/s Sana Transport

Company. The complainant became careless in the discharge of

his duties and his services were terminated in March 2020 w.e.f.

01.04.2020. The entire freight charges were paid through bank

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transfers. The accused No.2 received a message on his mobile

regarding the presentation of the cheque. He sent a mail to the

bank to stop the payment. He also filed a complaint before the

police. He sent a reply to the notice. When no action was taken

by the police, the accused filed a complaint under Section 156(3)

of Cr. P.C. in the Court of learned Additional Chief Judicial

Magistrate Paonta Sahib. The police registered FIR No. 30 of

2022 dated 24.02.2022 against the complainant and his brother.

The complainant forged various documents on the letter head of

the Firm. He had filed a false complaint based on the cheque

fraudulently obtained by him. A conjoint reading of FIR and the

complaint show that these are interconnected; therefore, it was

prayed that the present petition be allowed and the complaint be

ordered to be quashed.

4. The petition is opposed by filing a reply making

preliminary submissions regarding lack of maintainability,

accused having suppressed material facts from the Court and

the accused being estopped from filing the petition due to their

act and conduct. The contents of the petition were denied on

merits. It was asserted that the complainant worked with

honesty and sincerity in the best interest of the Firm. M/s Sana

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Transport worked with the petitioner/accused till July 2020. It

was specifically denied that the freight charges were paid by the

accused. A false complaint was made to create evidence in favour

of the accused. The cheque was issued in the discharge of the

legal liability. The documents filed by the petitioners/accused

can only be looked into during the trial and not during the

present proceedings. Therefore, it was prayed that the present

petition be dismissed.

5. A rejoinder denying the contents of the reply and

affirming those of the petition was filed.

6. An application under Section 482 of Cr.P.C. for

placing on record the documents was also filed.

7. I have heard Mr. Bimal Gupta, learned Senior

Advocate assisted by Ms. Kusum Chaudhary, learned counsel for

the petitioners and Mr. Karan Singh Kanwar, learned counsel for

the respondent/complainant.

8. Mr Bimal Gupta, learned Senior Advocate for the

petitioner/accused submitted that the complainant was

employed with the accused Firm. He was in possession of the

letter heads and the cheques of the Firm. He misused the cheque

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and filed a false complaint after his services were terminated by

the Firm. This fact has been corroborated by the report of the

police made in the FIR filed by the accused. The continuation of

the proceedings in the complaint amounts to an abuse of the

process of the Court. Therefore, he prayed that the present

petition be allowed and the complaint be ordered to be quashed.

9. Mr. Karan Singh Kanwar, learned counsel for the

respondent/complainant submitted that it is not permissible for

this Court to go into the truthfulness or otherwise of the

allegations made in the complaint. The Court has to see if any

case is made out on a bare reading of the complaint. The

complaint should not be quashed at the threshold without

allowing the complainant to prove his case. Therefore, he prayed

that the present petition be dismissed.

10. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

11. The parameters for exercising jurisdiction under

Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme

Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it

was observed: -

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"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 452 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:

"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

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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 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

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the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."

12. Similar is the judgment in 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:

"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

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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.

(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

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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."

13. Mr. Bimal Gupta, learned Senior Advocate for the

petitioner/accused referred to various documents annexed to

the complaint to submit that these documents show that the

complaint is false. This submission is not acceptable. First, it is

not permissible for the Court exercising jurisdiction under

Section 482 of Cr.P.C. to look into the documents annexed with

the petition and the Court can only look into the complaint and

the documents filed before the learned Trial Court. 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

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will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code."

14. 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

proceeding 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 additional evidence, which is not the object of Section 482, Cr.P.C."

15. 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

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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".

16. 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, based on the evidence collected during the course of the trial."

17. This position was reiterated in Supriya Jain v. State of

Haryana, (2023) 7 SCC 711: 2023 SCC OnLine SC 765 wherein 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

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Court was warranted or not. We, therefore, see no reason to place any reliance on these three documents."

18. A similar view was taken in Iveco Magirus

Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya, (2024) 2

SCC 86: (2024) 1 SCC (Cri) 512: 2023 SCC OnLine SC 1258, wherein

it was observed:

"63. Adverting to the aspect of the 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, the law seems to be well settled that the High Courts can go no further and enlarge the 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)

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19. Therefore, it is not permissible to look into the

material filed by the petitioner with the petition and the Court

has to rely upon the material filed with the complaint.

20. Secondly, this Court does not determine the

truthfulness or the falsity of the allegations made in the

complaint because this is a matter of trial to be adjudicated by

a learned Trial Court where the matter is pending. This position

was laid down in Maneesha Yadav v. State of U.P., 2024 SCC

OnLine SC 643 wherein it was held: -

"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. 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:

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"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 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."

21. Hence, it is not permissible for the Court to go into

the truthfulness or otherwise of the allegations made in the

complaint.

22. A heavy reliance was placed upon the status report

submitted by the police in the FIR lodged by the

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petitioner/accused to submit that the result of the investigation

by the police shows that the contents of the complaint are false.

It was submitted that the result of the investigation has been

drawn by an independent agency, which is not interested in the

dispute pending between the parties and is entitled to great

weight. This submission will not help the petitioner. The result

of the investigation is the conclusion drawn by the Investigating

Officer, which is submitted to the Court for trial as per law. It is

not evidence and is to be tested before the Court of law by

leading the evidence. Therefore, the Courts of law do not place

reliance upon the result of the investigation. Accepting the

submission would mean that whatever has been found by the

Investigating Officer is to be taken as correct and a person can

be sent to jail merely on the basis of the result of the

investigation. This is not the law. Therefore, no advantage can

be derived from the status report submitted by the Investigating

Officer after the investigation.

23. It is undisputed even in the petition that the cheque

bears the signatures of the petitioner/accused. This is apparent

from the fact that a plea has been taken that the accused took

the blank signed cheque during the discharge of his duties. It is

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also undisputed that the vehicle was engaged by the

accused/petitioner for transportation. The accused claims that

the money was paid by bank transfer while the complainant

claims that the cheque was issued towards the transportation

charges. This is a factual dispute to be resolved by the learned

Trial Court where the matter is pending. 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 cheque carries

with it a presumption of consideration which is to be rebutted by

leading evidence and any factual dispute is to be resolved by

weighing evidence. 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

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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 judges 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. Without keeping in view, the statutory presumption raised under Section 139 of the NI Act, the High Court, in our view, committed a

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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 a factual dispute, so as to conclusively vindicate either the complainant or the defence."

24. It was further held that the Courts should be slow in

scuttling the complaint at a pre-trial stage. It was observed:

"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

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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."

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, to altogether disprove the allegations made in the complaint.

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17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing 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."

25. Therefore, the Court cannot hold that the cheque was

issued without any legal liability and quash the complaint

without affording the opportunity to the complainant to prove

his case before the learned Trial Court.

26. A plain reading of the complaint discloses the

commission of an offence punishable under Section 138 of

the Negotiable Instruments Act and the same cannot be

quashed.

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27. Consequently, the present petition fails and the same

is dismissed.

28. The observations made hereinbefore shall remain