Bhawani Singh Rajput vs Rajveer Singh Parmar
2023 Latest Caselaw 12160 MP

                                           01

     IN THE          HIGH COURT                  OF MADHYA

                               PRADESH

                         AT G WA L I O R
                                 BEFORE
  HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR

                   ON THE 1st OF AUGUST, 2023

           MISC. CRIMINAL CASE No. 18970 of 2022

BETWEEN:-
BHAWANI SINGH RAJPUT S/O SHRI
DEVENDRA SINGH RAJPUT, AGED
ABOUT 33 YEARS, OCCUPATION :
BUSINESS,  R/O JABIA,  TEHSIL
JASWANTPURA, DISTRICT JALAUR
(RAJASTHAN)

                                                           .......PETITONER
(BY SHRI VIJAY DUTTA SHARMA - ADVOCATE)


AND
RAJVEER SINGH PARMAR S/O SHRI
LAKHAN SINGH PARMAR, AGED
ABOUT 32 YEARS, OCCUPATION:
BUSINESS, R/O WARD NO. 14,
GOPALPURA     ROAD,    PORSA,
DISTRICT   MORENA    (MADHYA
PRADESH)

                                                         .....RESPONDENT
(BY SHRI LOKENDRA SHARIVASTAVA - ADVOCATE)
--------------------------------------------------------------------------------
                                     02

      This petition coming on for admission this day, the court
passed the following:

                             ORDER

This miscellaneous criminal petition under Section 482 of CrPC is filed, challenging the validity of proceedings pending at RCT No.09/2018 before the Court of Judicial Magistrate First Class, Ambah, District Morena (M.P.). In this petition, the legality of order taking cognizance dated 02/04/2018 and the order framing charge dated 06/09/2019 is also assailed.

The petition inter-alia states that a private complaint alleging offence under Section 138 of Negotiable Instruments Act was filed before learned Judicial Magistrate First Class, Ambah, District Morena against the petitioner. After preliminary enquiry, the same was registered as Special Case No.NIA 09/2018. Learned trial Court took cognizance of the offence punishable under Section 138 of Negotiable Instruments Act vide order dated 02/04/2018, thereafter, charge for the same offence was framed against the petitioner vide order dated 06/09/2019.

Being aggrieved by the registration of the complaint, cognizance and framing of charge against the petitioner, entire proceeding is challenged in the petition on the ground that no legally recoverable debt or liability was in existence for issuance of the cheques.

It is further stated in the petition that the petitioner and

respondent/complainant were business partners in the firm N.K.B. Infrastructures vide partnership deed dated 24/10/2016. Same partnership firm was dissolved vide dissolution deed dated 01/12/2017. Since dissolution of the partnership, no transaction took place between the parties, therefore, no dues were in existence against the petitioner. The partnership dissolution deed dated 01/12/2017 also mentions that there were no dues against the parties to the partnership. Therefore, no legally recoverable debt or liability was in existence against the petitioner. In absence of such legally recoverable debt or liability, no offence under Section 138 of Negotiable Instruments Act is made out. The complaint and consequential proceedings pending before the learned Judicial Magistrate are abuse of process of law, therefore, the complaint and all consequential proceedings in RCT No.09/2018 deserve to be quashed.

Learned counsel for the petitioner draws attention of the Court towards para No.1 of the impugned complaint, wherein it is stated that the complainant had advanced certain money for business need of the accused. Complainant demanded settlement of account so accused has issued two cheques dated 15/01/2018 and 27/12/2017 respectively in favour of the complainant. Learned counsel contends that it was not mentioned in the complaint that these cheques were issued for settlement with regard to dissolution of partnership firm.

Learned counsel for the petitioner further draws attention of the Court towards the partnership deed and the dissolution deed dated 24/10/2016 and 01/12/2017 respectively wherein it is mentioned that no amount is due between the parties. On the basis of above referred documentary evidence which were produced before the learned Judicial Magistrate on behalf of the complainant, learned counsel contends that no legally recoverable debt or liability was in existence between the parties, therefore, no offence under Section 138 of Negotiable Instruments Act was made out.

Per contra, learned counsel for the respondent/complainant submits that the averment in the complaint are sufficiently clear to the effect that the cheque in question were issued towards payment of loan advanced by the complainant to the accused with regard to their business and financial transactions. Learned counsel further submits that cheques were issued on the date of dissolution of partnership between the parties. Affidavit of Bhawani Singh Rajput (Accused No.2) specifically mentions this fact. The probative value and effect of the documents on record will be considered at the trial, therefore, no case for quashment of complaint and consequential proceedings is made out.

Heard learned counsel for both the parties and perused the record.

The Supreme Court in the case of Amit Kapoor Vs Ramesh

Chander and Another (2012)9 SCC 460, laid down principle to be considered for exercise of jurisdiction under Section 482 of Cr.P.C, regarding quashment of proceedings as under:-

"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with refer- ence to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon ob- jective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with cir- cumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the un- controverted allegations as made from the record of the case and the documents submitted therewith prima facie es- tablish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingre- dients of a criminal offence are not satisfied then the Court may interfere.

27.4. Where the exercise of such power is absolutely essen- tial to prevent patent miscarriage of justice and for correct- ing some grave error that might be committed by the subor- dinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecu- tion in exercise of its inherent powers.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to pre- dominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic in- gredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a con- viction; the court is concerned primarily with the allega- tions taken as a whole whether they will constitute an of- fence and, if so, is it an abuse of the process of court lead- ing to injustice.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is main- tainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into con- sideration external materials given by an accused for reach- ing the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to con- sider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit con- tinuation of prosecution rather than its quashing at that ini- tial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito- justitiae i.e. to do real and substantial justice for adminis- tration of which alone, the courts exist.

[Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949] ; Mad- havraoJiwajiraoScindia v. SambhajiraoChandrojiraoAngre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] ; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] ; RupanDeol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] ; G. SagarSuri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] ; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] ; Pepsi Foods Ltd. v. Spe- cial Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128] ; State of U.P. v. O.P. Shar- ma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497] ; Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634] ; Zandu Pharmaceutical Works Ltd. v. Mohd. SharafulHaque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] ; Medchl Chemicals &Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869] ; ShaksonBelthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412] ; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356] ; Chunduru Siva Ram Krishna v. PeddiRavindraBabu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297] ; SheonandanPaswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82] ; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260] ; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275] ; M. Krish- nan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] ; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of Gu-

jarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201] .] 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consid- eration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an of- fence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the

premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compli- ance with the requirements of the offence."

In the backdrop of aforesaid proposition of law, the contentions of both the parties are considered.

In para 1 of impugned complaint, it is mentioned that in furtherance of business and for business need of the accused, complainant had advanced him money from time to time. When complainant demanded settlement of account, the accused has issued the cheuqes in question. Therefore, the complaint prima facie reflects allegations with regard to existence of legally recoverable debt or liability. The averment in the complaint would be supported by legal presumption under Section 138 and 139 of Negotiable Instruments Act at trial. The documents with regard to dissolution of partnership and the statement contained therein, may be probable defence of the accused which cannot be gone into at the preliminary stage of proceeding i.e., cognizance and framing of charge. From the complaint and the statement of complainant, no inference of absolute lack of legally recoverable debt or liability can be drawn. It cannot be said that the allegations as reflected in the complaint, if taken at their face value and accepted in their entirety, would not be sufficient to constitute an offence punishable under Section 138 of Negotiable Instruments Act. Thus, it is clear that the case under consideration does not fall within the ambit of principles laid down in case of Amit Kapoor (Supra) for invoking

inherent jurisdiction under Section 482 of CrPC. This Court is of the considered opinion that no case is made out for quashment of proceedings.

Therefore, this petition fails and is hereby dismissed.

(Sanjeev S Kalgaonkar) Judge Monika

MONIKA SHARMA 2023.08.03 10:39:58 +05'30'