Madhya Pradesh High Court
Mayank Marketing Through Proprietor ... vs Hemendra Singh on 31 January, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:2670
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 31st OF JANUARY, 2025
MISC. CRIMINAL CASE No. 42253 of 2024
MAYANK MARKETING THROUGH PROPRIETOR MADHURI SINGH
Versus
HEMENDRA SINGH
Appearance:
Shri Amit Singh Sisodia, Advocate for the petitioner.
Shri Avinash Yadav, learned counsel for the respondent [R-1].
ORDER
This petition under Section 528 of Bharatiya Nagrik Suraksha Sanhita, 2023 is
filed for quashing of complaint for offence punishable under Section 138 of the
Negotiable Instrument Act, 1881 ( in short .... "the N.I. Act") pending before
Judicial Magistrate First Class, Sonkatch, District Dewas (M.P.) at Criminal Case
SC NIA No.09/2021.
2. The criminal complaint and the cognizance by the trial Court is assailed in this
petition mainly on two grounds:-
(1) There is non-compliance with the statutory provisions of Section
138(b) of the N. I. Act as the complainant has failed to give statutory
notice within 30 days of the receipt of information from the Bank
regarding return of the cheque as unpaid.
(2) The cheque in question was given as security to Bharat Prajapati
towards outstanding balance of purchased transaction.
3. Learned counsel for the petitioner contends that the cheque in question was
dishonoured on 23.10.2020, but the statutory notice was issued on 24.12.2020,
therefore, the complaint is barred by limitation prescribed under Section 138(b) of
the N.I. Act. Learned counsel referring to Annexure-A/5 submits that the
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complainant attempted to bring the complaint within limitation by producing
postal receipt and a postal envelope which was addressed to Mahendra, whereas,
the name of complainant is Hemendra S/o Dhansingh.
4. Learned counsel for the petitioner further referring to Annexure-A/6, the F.I.R
and the seizure memo in Crime No.196/2022 submits that the concerned seizure
memo dated 08.06.2022 specifically mentions that the cheque in question bearing
No.084169 dated 22.08.2020 was issued as security cheque towards outstanding
payment and given to Bharat Prajapati. Therefore, the cheque was not issued
against any existing debt or liability. In absence of any existing debt or liability,
no offence punishable under Section 138(b) of N.I. Act is made out.
5. Learned counsel for the petitioner relied on the order dated 30 th July, 2024,
passed by Coordinate bench of this Court in M.Cr.C. No. 45471 of 2022 (Gyan
Yadav Vs. Bhagwat Prasad Patel (Dead) Through His legal Representative Vishal
Patel) to buttress the argument that in absence of any document to demonstrate
that the information regarding dishonour of cheque was received by the
complainant on a particular date, the complainant would be barred by limitation.
6. Per Contra , learned counsel for the respondent submits that the complaint and
the statutory notice specifically mention that the complainant has received
information with regard to dishonour of the cheque in question on 29.11.2020,
therefore, the statutory notice demanding the amount of cheque, dated
24.12.2020, was well within the limitation prescribed under Section 138(b) of the
N.I. Act. The postal envelop Annexure-A/5, due to inadvertent mistake, was
addressed to Mahendra instead of Hemendra, but the name of father and address,
even the mobile number mentioned on the postal envelop relates to the
complainant, therefore, the contention with regard to delay in sending the
statutory notice is merit-less. Learned counsel for the respondent relied on the
order dated 11.12.2013, passed in Cri.A. No.2083/2013(Kamlesh Kumar Vs.
State of Bihar & Anr.) by Hon'ble Supreme Court of India to buttress the
contention that the statutory notice should be issued within 30 days of the receipt
of the information from the Bank regarding the return of cheque as unpaid.
Learned counsel for the respondent also contends that the cross examination of
complainant Hemendra Singh is over. The accused did not challenge the factum
of receipt of information vide Annexure-A/5.
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7. Learned counsel further contends that the seizure memo Annexure-A/6 relied
by the petitioner itself reveals that the total transaction was of Rs.42,87,374/- out
of which only Rs.26,80,000/- were paid towards purchase of wheat and soyabean
seeds. Rest of the outstanding amount was to be paid on 22.08.2020, therefore,
the cheque in question was issued by the accused. The existence of legally
recoverable debt or liability is a question of fact which is to be determined after
the evidence on merit.
8. Heard both learned counsel for the parties and perused the record.
9. In case of State of Haryana v. BhajanLal reported in 1992 Supp (1) SCC 335,
the Supreme Court laid down the principles for the exercise of the jurisdiction by
the High Court in exercise of its powers under Section 482 CrPC/528 of BNSS to
quash the proceedings, as under :
"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 CrPC 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) CrPC
except under an order of a Magistrate within the purview of Section 155(2)
CrPC.
(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) CrPC.
(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.
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(6) Where there is an express legal bar engrafted in any of the provisions of
the Code or the Act concerned (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."
10. The Apex Court in the case of Indian Oil Corpn. v. NEPC India Ltd., reported
in (2006) 6 SCC 736 has held as under:
"12. The principles relating to 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 of 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
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the complaint is warranted only where the complaint is so bereft of even
the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or
(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.
11. In case of Rajeshbhai Muljibhai Patel v. State of Gujarat (AIR 2020 SC 818) ,
it was held that-
"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 the 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 serious error in quashing the criminal complaint in CC
No. 367 of 2016 filed under Section 138 of the NI Act."
12. In the light of the aforesaid propositions of law, the factual scenario of the
matter in hand is considered.
13. Whether the information was, infact, received by the complainant on
29.11.2020 vide Annexure-A/5 is a disputed questions of fact which cannot be
deliberated upon by this Court in exercise of inherent jurisdiction. It would
require meticulous analysis and assessment of the genuineness of the evidence
and the material relied upon by the complainant and the allegations contained in
the complaint. Further, whether the cheque in question was issued against existing
liability or debt in view of aforesaid seizure memo is also a question of fact which
will require proof of the contents of seizure memo by evidence. The seizure
memo Annexure-A/6 is not part of the record of the complaint case, rather, it
relates to the defense of the accused. Therefore, in light of the judgment of the
Apex Court in the case of Rajiv Thapar v. Madan Lal Kapoor reported in (2013)
3 SCC 330, it cannot be relied upon for quashing the complaint without formal
proof of it's veracity.
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14. The allegations made in complaint prima facie constitute the offence
punishable under Section 138 of the N. I. Act against the petitioner/accused.
Consequently, the quashing of complaint is unwarranted at present stage.
15. No ground is made out for invoking the inherent jurisdiction in exercise of
powers under section 528 of BNSS, 2023 to quash the complaint and prosecution.
The petition, being meritless, is hereby dismissed.
(SANJEEV S KALGAONKAR)
JUDGE
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