Madras High Court
The Managing Director vs M/S.Balajee Agencies on 25 January, 2021
Crl.O.P.(MD)No.5201 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE ON WHICH RESERVED : 25.01.2021
DATE ON WHICH PRONOUNCED : 22.02.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.5201 of 2017
and
Crl.MP(MD)No.3670 of 2017
The Managing Director,
M/s.Singer India Limited,
A-26/4, Second Floor,
Mohan Co-operative Industrial Area,
Mathura Road,
New Delhi-110 044. ... Petitioner/Accused No.1
Vs.
M/s.Balajee Agencies,
No.41, Fathima Hakkim Complex,
singarathope,
Thiruchirapalli-8
represented by its Proprietor,
S.Sathiskumar
S/o.P.Santhanam,
No.7, 3rd Cross, Vadivel Nagar,
Woraiyur,
Thiruchirapalli. ... Respondent/Complainant
Prayer:Criminal Original Petition filed under Section 482 Cr.P.C., to call
for the records relating to the proceedings in C.C.No.73 of 2017 on the file
of the learned Judicial Magistrate No.I, Thiruchirapalli and quash the same.
1/14
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Crl.O.P.(MD)No.5201 of 2017
For Petitioner : Mr.M.Prabhakaran for
Mr.T.Antony Arul Raj
For Respondent : Mr.N.Vijayarajan
(Legal Aid Counsel)
ORDER
This Criminal Original Petition has been to quash the proceedings in
C.C.No.73 of 2017 on the file of the learned Judicial Magistrate No.I,
Thiruchirapalli.
2. The facts of the case is that the respondent in this case is the dealer
of the petitioner from 2007 onwards for the purpose of selling the sewing
machines manufactured by the petitioner company and in the course of the
transaction the respondent issued cheques towards the discharge of the
liability and those two cheques viz cheque no 674544 for a sum of
Rs.3,03,090/- and cheque no 674556 for a sumof Rs.1,53,780 and were
presented for payment by the petitioner for encashment on the dates
mentioned in the complaint filed by the petitioner against the respondent
and were dishonoured. Because of that dishonour in spite of the issue of
notice the respondent did not come forward to pay the amount or discharge
the liability so STC no 214 of 2011 and STC number 205 of 2011 were filed
by the petitioner before the jurisdictional judicial magistrate court. On the
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Crl.O.P.(MD)No.5201 of 2017
receipt of the summons filed a private complaint before the Trial court
stating that the cheques were not issued by the respondent towards any
liability but even as per the statement of accounts presented by the
petitioner these two cheques were accounted for. As per the business
agreement between the parties, on the credit basis, the respondent used to
issue cheques and those cheques even after proper accounting have been
mis-utilised by the petitioner and thereby the petitioner has committed
offences punishable under sections 120 B, 199, 406 and 467 Indian penal
code. On the basis of the complaint, the trial court took cognizance of the
offence and so petition is filed by the petitioner to quash the private
complaint mainly on the ground that the issue of the cheques were not
denied and disputed by the respondent and there was a legally enforceable
liability and as such no offences are attracted and so the case before the trial
court is abuse of the process of the court and it is liable to be quashed.
3. The Question which arises for consideration is whether the private
Compliant filed by the respondent is purely an abuse of the process of the
court or conversely whether the ingredients of the offences mentioned in the
complaint are attracted warranting cognizance of the offences against the
petitioner.
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Crl.O.P.(MD)No.5201 of 2017
4. Even though this court should not to take into the factual aspects
while deciding the petition filed under section 482 criminal procedure code,
facts narrated in the complaint filed by the respondent, must also be taken
into account, for the purpose of deciding the dispute.
5. The fact that the respondent and the petitioner were engaged in
business transaction by which the respondent was acting as a dealer for the
selling the sewing machines is not denied and disputed. It is also not denied
that for the purpose of the transaction credit facility was extended to the
respondent by the petitioner.
6. As per the documents produced by the respondent before the trial
court it is seen that notice was issued by the respondent in reply to the
notice issued by the petitioner over the dishonour of the disputed cheques.
In reply it has been categorically admitted by the respondent to the effect
that as per the agreement, the respondent used to issue blank signed
cheques in favour of the petitioner whenever the goods were supplied to
him on credit basis. When the amount is paid it would be accounted. So
according to the respondent this practice was going on between the parties
and in due course of time some sort of dispute arose, as a result of which,
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Crl.O.P.(MD)No.5201 of 2017
the business transaction ended and the petitioner also directed the
respondent to vacate premises where he was carrying on business. Those
facts are irrelevant for our consideration. Now, according to the respondent,
the cheques, which were issued towards discharge of the amount has been
mis-utilised by the petitioner when dispute arose between them, by filling
up the same with exorbitant amount foisted the false complaint. So,
according to the respondent, the petitioner has committed the offences of
forgery etc.,
7. Now, according to the petitioner, when the liabilities are admitted
by the respondent and the issue of the cheques are also not denied. Facts,
which are mentioned by the respondent, in the private compliant, will not
attract any offence. According to the petitioner, those facts cannot be taken
or be used for the purpose of filing the private compliant.
8. Next argument, on side of the petitioner, is that the Complaint has
been filed belatedly knowing fully well that the notice was issued as early as
in 2012and whereas the complaint has been filed much after of the period
of limitation prescribed in section 468 of criminal procedure code.
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Crl.O.P.(MD)No.5201 of 2017
9. According to the learned counsel for the petitioner by relying upon
judgments of the Hon'ble Supreme Court reported in i) Eicher Tractor
Limited and Others Vs Harihar Singh and Another (2008) 16 Supreme
Court Cases 763, ii) Mahindra & Mahindra Financial Services Limited
and Another Vs Rajiv Dubey (2009) 1 Supreme Court Cases 706 and iii)
D.P.Gulati, Manager Accounts, Jetking Infortrain Limited Vs State of
Uttar Pradesh and Another have contended that when a criminal
prosecution is initiated under Section 138 of the Negotiable Instruments
Act, if any counter complaint is filed as a counter blast to delay the
proceeding, then it will be an abuse of process of the Court and is liable to
be quashed. According to the learned counsel for the petitioner, this is
nothing, but, counter complaint, which has been filed by the respondent,
much after launching of the prosecution by the petitioner under Section 138
of the Negotiable Instruments Act as well as the arbitration award passed by
the Arbitrator over the liability.
10. The judgment of the Hon'ble Supreme Court reported in Rajiv
Thapar Vs Madan Lal Kapoor 2013 3 SCC 330 enumerated the steps
required to be followed by the High Court before invoking jurisdiction
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Crl.O.P.(MD)No.5201 of 2017
under Section 482 of Cr.P.C. The steps are as follows:-
“7.........................
30.1.Step one: whether the material relied upon
by the accused is sound, reasonable, and indubitable i.e.
the material is of sterling and impeccable quality?”
30.2.Step two:Whether the material relied upon by
the accused would rule out the assertions contained in the
charges levelled against the accused I.e the material is
sufficient to reject and overrule the factual assertions
contained in the complaint i.e the material is such as
would persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as false?
30.3.Step Three: Whether the material relied upon
by the accused has not been refuted by the
prosecution/complainant; and/or the material is such that
it cannot be justifiably refuted by the
prosecution/complainant?
30.4.Step four: whether proceeding with the trial
would result in an abuse of process of the Court, and
would not serve the ends of justice?
30.5.If the answer to all the steps is in the
affirmative, the judicial conscience of the High Court
should persuade it to quash such criminal proceedings in
exercise of power vested in it under Section 482 Cr.P.C.
Such exercise of power, besides doing justice to the
accused, would save precious court time, which would
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Crl.O.P.(MD)No.5201 of 2017
otherwise be wasted in holding such a trial (as well as
proceedings arising therefrom) specially when it is clear
that the same would not conclude in the conviction of the
accused.”
11. Per contra, the learned counsel for the respondent would rely
upon the judgment of the Hon'ble Supreme Court reported in Pareshbhai
Amrutlal Patel and Others Vs. State of Gujarat and Another 2020 12
SCC 569 and submits that a clear case of cheating, misappropriaion and
fraudulent forging of documents have been alleged by the defacto
complainant and so, the present case, must be transferred to the Court to
which the cases filed under Section 138 of Negotiable Instruments Act are
pending. According to him, the Hon'ble Supreme Court, thought it fit not to
quash the counter case and thought it fit to direct joint trial. So, question
which arises for consideration is whether this is a fit case for quashment
or for ordering joined trial.
12. The next contention on the part of the respondent is that fraud has
been committed by the petitioner by withholding the relevant document
dated 01.10.2011, only the petitioner has played fraud upon the Court, while
filing the private complaint, under Section 138 of Negotiable Instruments
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Crl.O.P.(MD)No.5201 of 2017
Act. He further rely upon the constitutional judgment of the Hon'ble
Supreme Court reported in R.C.Lahoti and Others Vs Meenakshi
Marwah and Another 2005 (2) Supreme 549 for the purpose of argument
that for filing private complaint for the offence under Section 199 of IPC,
there is no bar under Section 195(1) (b) (ii) of Cr.P.C. It is a contention on
the part of the petitioner that to file a complaint for an offence under Section
199 of IPC, bar under Section 195 (1) (b) (ii) of Cr.P.C will come into force.
But, here it is the case of the respondent that the blank cheque issued by him
has been forged by filling the date and amount and after that, it was
presented for encashment.
13. As per the judgment of the Hon'ble Supreme Court, the bar under
Section 195 (1) (b) (ii) of the Cr.P.C will be attracted, only if the document
inrespect of, which forgery is alleged, must have been committed
subsequent to the filing of the same into the Court or subsequent to the
document tendered in evidence. So, in the facts and circumstances of the
case, the bar under Section 195 (1) (b) (ii) of the Cr.P.C is not attracted. So,
this argument is not available to the petitioner.
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Crl.O.P.(MD)No.5201 of 2017
14. From the analysis of the facts and circumstances of the case, it is
clearly seen that the respondent did not take any action either for giving a
police complaint or for filing a private complaint, soon after, the receipt of
notice of demand issued by the petitioner inrespect of those two disputed
cheques. Moreover, he has also suffered an award in the arbitration
proceedings in respect of these two disputed cheques. On 14.08.2014,
wherein, the respondent remained exparte inspite of several opportunities
given to the respondent. But, he did not participate in the arbitration
proceedings. So, even after that, he did not take any action for filing
complaint or information to the police. The present prosecution was
initiated, only in the year of 2015. The reason for the long delay is also not
clearly stated by the respondent in the complaint.
15. In respect of disputed cheques, there is a clear admission on the
part of the respondent to the effect that as per the agreement between the
parties, it was the practise of issuing blank cheques, whenever, goods are
delivered on credit basis. When cash is paid towards the delivery of the
goods, it will be accounted. Along with the complaint, account statement
issued by the petitioner is also filed. Perusal of the accounts statement
shows that whenever, there was supply of goods on credit basis, the
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Crl.O.P.(MD)No.5201 of 2017
respondent used to send cheque, which according to him, signed blank
cheque and whenever, amount is paid, it was given credit. As per the
statement of accounts, it is seen that as on 30.09.2011, the closing balance is
Rs.7,12,663/-. As per the case of the respondent, this is the disputed amount.
According to the respondent, as mentioned earlier vide in his reply notice,
regarding the disputed cheques, we find entry dated 05.07.2011 and
08.08.2011. According to the respondent, this statement of account has been
suppressed, while filing the cases by the petitioner in STC.No.214/11 &
STC.No.205/11. According to the respondent, these two cheques were
already given discharge and accounted. But, later, they have been forged
and presented for encashment. So, according to him, forgery and other
offences are clearly made out.
16. Moreover, from the discussion made above and as per the
statement of accounts and as well as from the reply notice sent by the
respondent, it is seen that outstanding amount is liable to be settled. For
which, as mentioned earlier, the respondent has sought accommodation of
the petitioner for settlement through negotiation across table and also
requested time for settling the accounts.
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Crl.O.P.(MD)No.5201 of 2017
17. Para 1 & 2 of the reply notice reads as under:-
“2.7.Hence, it is important to mention that your
client had attempted to utilize unlawfully certain
cheque leafs for which payments have already been
received by your client. In any event, the Statement of
Account is not admitted by my client as true as certain
amounts already sent by my client has not been given
credit in the said Statement of Accounts. After finalising
the statement of accounts with your client, my client
would be able to find out the true due from my client to
your client. In any event, the outstanding referred to in
paragraph 4 of the notice under reply has to be
checked by permitting my client to sit with your client's
representative and decide about the actual due amount
from my client.
8.My client requests your client that your client
may sit with my client and sort out the issues involved
inclusive of non replacement of the defective machines
and thereby arrived at account details smoothly. If after
considering the above materials, if any amount is found
payable due from my client to your client, my client is
prepared to pay the same if your client is willing to
grant a time of two years for the payment of the entire
arrears found in accordance with the account settling
arraignment between my client and your client as
stated in the notice.”
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18. Having admitted those things, the present criminal prosecution is
launched. In the facts and circumstances of the case, I am of the considered
view that it is nothing, but, clear abuse of process of the Court. As made as
one of the grounds for which, the criminal complaint can be quashed as per
the judgment of the Hon'ble Supreme Court in State of Haryana Vs
Bajanlal 1992 SCC Crl 426.
19. In the result, complaint filed by the respondent against the
petitioner in C.C.No.73 of 2017, on the file of the learned Judicial
Magistrate No.I, Thiruchirapalli, stands quashed and accordingly, this
Criminal Original Petition is allowed. Consequently, connected
miscellaneous petition is closed.
22.02.2021
Internet:Yes
Index:Yes/No
Speaking order/Non-Speaking order
dss
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
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Crl.O.P.(MD)No.5201 of 2017
G.ILANGOVAN,J.,
dss
To
The Judicial Magistrate No.I,
Thiruchirapalli
Crl.O.P.(MD)No.5201 of 2017
and
Crl.MP(MD)No.3670 of 2017
22.02.2021
http://www.judis.nic.in
