Himachal Pradesh High Court
Poonam And Another vs Coram on 30 September, 2024
Neutral Citation No. ( 2024:HHC:9336 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 1185 of 2023
.
Reserved on: 18.9.2024
Date of Decision: 30.9.2024.
Poonam and another ...Petitioners
Versus
Coram
r to
Shriram Transport Finance Corporation Ltd. ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioners : Mr. B.N. Sharma, Advocate.
For the Respondents : Mr. Sanjay Dalmia, Advocate.
Rakesh Kainthla, Judge
The petitioners have filed the present petition for
quashing of Complaint No. 149 of 2023, titled Shriram Transport
Finance Company Ltd. Vs. Poonam and others, dated 17.1.2023
for the commission of an offence punishable under Section 138
of Negotiable Instruments Act (in short the NI Act).
2. Briefly stated, the facts giving rise to the present
petition are that the complainant filed a complaint before the
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:9336 )
learned Trial Court against the accused for the commission of an
offence punishable under Section 138 read with Section 142 of
.
the NI Act. It was asserted that the complainant is a Company
incorporated under the Companies Act and is engaged in the
business of extending financial services. Accused No.1 being the
loanee and accused No.2 being the guarantor approached the
complainant and availed credit/financial facility under the loan
agreement against the vehicle bearing registration No. HP-01-
A-3774 for an amount of ₹3,17,000/-. The loan was to be repaid
in 48 equal monthly instalments (EMIs) without any default.
The accused were irregular in payment of monthly instalments.
The accused issued a cheque of ₹1,69,409/- on 3.11.2022 in
favour of the complainant. The complainant presented the
cheque before the bank but it was dishonoured with the
endorsement 'account blocked'. The complainant served a
notice upon the accused but the accused failed to pay the
amount. Hence the complaint was filed against the accused for
taking action as per the law.
3. Learned Trial Court found sufficient reasons to
summon the accused for the commission of an offence
punishable under Section 138 of the NI Act.
Neutral Citation No. ( 2024:HHC:9336 )
4. Being aggrieved from the order passed by the learned
Trial Court, the petitioners/accused have filed the present
.
petition for quashing of the complaint and the consequent
proceedings arising out of the same. It was asserted that the
accused was paying monthly instalments as per the agreement.
Some of the instalments were not paid. The complainant
initiated arbitration proceedings against the accused and
learned Arbitrator passed an award against the accused. An
execution petition was filed by the complainant before learned
District Judge, Shimla, who dismissed the same. A complaint has
been filed regarding the same loan agreement. The complainant
cannot proceed further with the present matter as the execution
petition has been dismissed by the competent Court. The
complainant had cheated the accused for which the proceedings
are pending in the Consumer Court. Therefore, it was prayed
that the present petition be allowed and the FIR be quashed.
5. I have heard Mr. B.N. Sharma, learned counsel for the
petitioner/accused and Mr. Sanjay Dalmia, learned counsel for
the respondent/complainant.
Neutral Citation No. ( 2024:HHC:9336 )
6. Mr. B.N. Sharma, learned counsel for the
petitioners/accused submitted that the learned Trial Court erred
.
in summoning the accused. The complainant had initiated
arbitration proceedings against the accused and the execution
proceedings were dismissed by the learned District Judge. The
judgment passed by the Civil Court is binding upon the Criminal
Court and the Criminal Court cannot proceed further with the
matter. r
7. Mr. Sanjay Dalmia, learned counsel for the
respondent/complainant submitted that the execution petition
was dismissed on technical grounds and no finding was
recorded by the learned District Judge regarding the loan.
Therefore, it was prayed that the present petition be dismissed.
8. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
9. A perusal of the certified copy of the order passed by
the learned District Judge dated 28.10.2022 shows that an
application for execution of the award pronounced by the
learned arbitrator was filed before the Court. Learned District
Judge held that the appointment of any person mentioned in the
Neutral Citation No. ( 2024:HHC:9336 )
7th schedule of the Arbitration and Conciliation Act as an
Arbitrator is void ab initio. In the present case, the Arbitrator was
.
appointed by the decree-holder and his appointment was void. A
void award cannot be enforced before the Civil Court. Hence, the
award was held to be non-executable and the petition for
executing the award was dismissed.
10. It is apparent from the perusal of the order that the
learned District Judge has not recorded any finding regarding
the validity of the loan or the entitlement of the complainant to
recover the loan from the accused persons; hence, the principle
that the judgment of the Civil Court will be binding upon the
Criminal Court does not apply to the present case. The judgment
of the Civil Court only deals with the appointment of the
Arbitrator and the validity of the award passed by him. The
complaint on the other hand was filed regarding the issuance of
the cheque towards the repayment of the loan. Since the
judgment of the Civil Court does not deal with the validity of the
loan or the repayment of the same, therefore, it cannot be said
that the Criminal Court is bound by any finding recorded by the
Civil Court. The Criminal Court is only concerned with the fact
whether all the ingredients of the commission of an offence
Neutral Citation No. ( 2024:HHC:9336 )
punishable under Section 138 of the NI Act are satisfied in the
present case or not. Since this question has not been decided by
.
the Civil Court, therefore, the proceedings cannot be quashed on
the ground that the Criminal Court is not entitled to proceed
with the complaint in view of the judgment of the Civil Court.
11. The contents of the complaint prima facie specify the
ingredients of Section 138 of the NI Act. 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:-
"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
Neutral Citation No. ( 2024:HHC:9336 )
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."
12. 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.
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:
Neutral Citation No. ( 2024:HHC:9336 )
"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."
13. Hence, it is not permissible for the Court to go into
the truthfulness or otherwise of the allegations made in the
complaint.
14. It was laid down by the Hon'ble Supreme Court in
Rathish Babu Unnikrishnan v. State (NCT of Delhi), 2022 SCC
Neutral Citation No. ( 2024:HHC:9336 )
OnLine SC 513, 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
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
Neutral Citation No. ( 2024:HHC:9336 )
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
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
Neutral Citation No. ( 2024:HHC:9336 )
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."
15. In the present case, no circumstances justify the
quashing of the complaint. Consequently, the present petition
fails and the same is dismissed.
16. The observations made here-in-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
30th September 2024
(Chander)
