Rajasthan High Court - Jodhpur
Prakash Mali vs State Of Rajasthan ... on 4 September, 2023
Bench: Kuldeep Mathur
[2023:RJ-JD:28017]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 8238/2022
Prakash Mali S/o Sh. Champa Lal, Aged About 36 Years, B/c Mali,
R/o Solanki Sweet Home, Uttarlai, Teh. And Dist. Barmer (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Dhanna Ram S/o Sh. Kheta Ram, B/c Meghwal, R/o Vill.
Dhundha- Kawas, Teh. And Dist. Barmer (Raj.).
----Respondents
For Petitioner(s) : Mr.Trilok Joshi.
For Respondent(s) : Mr.Gaurav Singh, P.P.
For Complainant(s) : Mr.Gopal Ram.
HON'BLE MR. JUSTICE KULDEEP MATHUR
ORDER
04/09/2023
The instant criminal miscellaneous petition has been filed by
the petitioner under Section 482 Cr.P.C. challenging the order
dated 29.8.2022 passed by learned Additional Sessions Judge
No.2, Barmer in Criminal Revision No.24/2017 (47/2016) and the
order dated 20.11.2015 passed by learned Additional Chief Judicial
Magistrate, Barmer in Criminal Case No.1627/2015 whereby
cognizance for offence under Section 138 of the Negotiable
Instrument Act was taken against the petitioner.
Learned counsel for the petitioner submitted that respondent
No.2 filed a complaint against the petitioner under the provisions
of Section 138 of Negotiable Instruments Act, 1881 (hereinafter
referred to as 'the Act of 1881') stating inter alia that three
cheques bearing Nos.822095, 822098 and 822099 dated
28.10.2014 for an amount of Rs. 10,00,00 each, totalling to
Rs.30,00,000 were handed over by the petitioner to respondent
[2023:RJ-JD:28017] (2 of 5) [CRLMP-8238/2022]
No.2. The complainant (respondent No.2) presented the cheques
on 06.11.2014, 07.11.2014 and 08.11.2014 to the bank for
payment. However, the same were dishonoured by the bank and
returned on 07.11.2014, 08.11.2014 and 10.11.2014 with an
endorsement 'fund insufficient'. The complainant- respondent No.2
thereupon, served a notice dated 06.12.2014 as per the provisions
of the Act of 1881. However, no reply thereof was given by the
petitioner. Thereafter, the complainant- respondent No.2 filed a
complaint under Section 138 of the Act of 1881 which led to the
summons and issue of process against the petitioner and
ultimately, vide order dated 20.11.2015, learned Additional Civil
Judge and Judicial Magistrate, Barmer had taken cognizance
against the petitioner under Section 138 of the Act of 1881.
As noticed above, the revision petition filed against order
dated 20.11.2015 passed by learned Additional Civil Judge and
Judicial Magistrate, Barmer was dismissed by the revisional court
i.e. learned Additional Sessions Judge No.2, Barmer vide order
dated 29.8.2022.
From the perusal of the miscellaneous petition preferred on
behalf of the petitioner, this Court finds that the basic ground of
challenge to the orders impugned is that the cheques in question
were not issued in discharge of a 'legally recoverable debt'.
The defence taken by the petitioner before learned court of
learned Additional Sessions Judge No.2, Barmer and revisional
court i.e. learned Additional Sessions Judge No.2, Barmer was that
on 18.10.2014, while going to Bandra Road from Uttarlai
(Barmer), the petitioner's cheque book of IDBI Bank A/C
No.10803315006 bearing signatures of the petitioner was
[2023:RJ-JD:28017] (3 of 5) [CRLMP-8238/2022]
mistakenly dropped by him on the road. An information was
lodged by him in this regard at PS Barmer Rural and payment was
also stopped. The lost cheque book was then found by the
complainant who by misusing the cheque leaves, presented the
same to the concerned bank.
Learned counsel submitted that in view of aforesaid, the
offence against the petitioner under the provisions of the Act of
1881 is not made out and therefore, the miscellaneous petition
may be allowed and the impugned orders dated 029.08.2022 and
20.11.2015 may be quashed and set aside.
Per contra, learned Public Prosecutor and learned counsel for
the complainant vehemently opposed the submissions advanced
by counsel for the petitioner and prayed that the criminal
miscellaneous petition may be dismissed by this Court.
Having gone through the orders impugned and after giving
due consideration to the arguments advanced, this Court finds
that the legal presumption of cheque having been issued in the
discharge of liability is in favour of the complainant-respondent
No.2. The courts below have rightly held that the burden of
proving that there is no existing debt or liability is on the
petitioner, which he has to discharge during trial. This Court finds
itself unable to quash the order taking cognizance against the
petitioner when the trial is at initial stage. The petitioner would be
free to take his defence with regard to existence of a legally
enforceable debt or liability before the competent criminal court.
Hon'ble Supreme Court of India in the case of State of
Haryana v. Bhajan Lal reported in AIR 1992 SC 604, held that
the power of quashing a criminal proceeding in exercise of
[2023:RJ-JD:28017] (4 of 5) [CRLMP-8238/2022]
inherent jurisdiction under Section 482 CrPC should be invoked
sparingly. Para 103 of the judgment is reproduced below for ready
reference:-
"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."
Similarly, Hon'ble the Supreme Court of India in the case of
Rathish Babu Unnikrishnan Appellant vs. The State (Govt.
of NCT of Delhi) & Anr. SLP (Crl) Nos.5781-5782 OF 2020,
held that quashing of criminal proceeding at preliminary stage
itself would have grave and irreparable consequences. Para
Nos.16, 17 and 18 of the judgment are reproduced below for
ready reference:-
"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 need 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
[2023:RJ-JD:28017] (5 of 5) [CRLMP-8238/2022]
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,
scuttling of the criminal process is not merited."
In the wake of discussion made herein above and precedent
law, the instant miscellaneous petition as well as stay application
is dismissed.
No order as to costs.
(KULDEEP MATHUR),J
/tarun goyal/
Sr.No.511
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