IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.09.2009
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
Crl.OP.Nos.10471/2005
P.Lalitha Petitioner
Vs
Pushpa Devi Respondent
Prayer:- This Criminal Original Petition is filed to call for records and quash the proceedings in CC.No.12686/2004 on the file of the learned Metropolitan Magistrate VIII, George Town, Chennai.
For Petitioner : Mr.P.Ganesan
For Respondent : Mr.N.S.Sivakumar
ORDER
This Criminal Original Petition is filed by the petitioner/accused to quash the proceedings in CC.No.12686/2004 on the file of the learned Metropolitan Magistrate VIII, George Town, Chennai.
2. The brief facts, which are essential for the disposal of this Criminal Original Petition, are as follows:-
The petitioner/accused has borrowed a loan of Rs.2.5 lakhs and executed a promissory note in favour of the respondent/complainant on 4.5.2002 and on repeated request made by the respondent for repayment of the loan amount with interest, the petitioner had issued a cheque bearing NO.739654 dated 3.10.2004 for a sum of Rs.3,95,000/- drawn on State Bank of India, Sidco Industrial Estate, Ambattur, Chennai on 3.10.2004. When the said cheque was presented for encashment, the same was returned on 7.10.2004 with an endorsement insufficient funds. The respondent issued a statutory notice dated 11.10.2004 to the petitioner and the petitioner/accused received the said notice on 16.10.2004, but neither paid the cheque amount within the stipulated period nor sent any reply. Hence, the complaint has been filed by the respondent under Section 138 of the Negotiable Instruments Act.
3. According to the petitioner, he has preferred a complaint against the respondent herein, who is arrayed as the accused for the offences under Sections 420, 384 of IPC and Section 4 of the TNPCEI Ordinance 2003 in Cr.No.625/2004 before the Inspector of Police, Central Crime Branch, Egmore, which is pending investigation and for the same cheque amount, the respondent has filed the present complaint under Section 138 of the Negotiable Instruments Act. He would submit that the police had registered a case on 29.11.2004, the respondent was arrested on 30.11.2004 and on his confession, certain documents were seized in the presence of the witnesses.
4. The learned counsel for the petitioner pressed into service the certified copy of judgement made in OS.No.6262/2005 dated 9.7.2005, dismissing the suit filed by the respondent’s husband against the petitioner’s wife and the learned Judge has found that the cheque allegedly issued by the petitioner is not a genuine one and blank cheques had been misused by him. The learned counsel would further contend that the said aspect goes to the root of the case including the cognizance taken by the learned Magistrate and the continuance of the proceedings on the basis of the impugned complaint by the learned Magistrate would certainly amount to abuse of process of court.
5. Per contra, Mr.N.S.Sivakumar, the learned counsel for the respondent would contend that this court in exercising its jurisdiction under Section 482 of Code of Criminal Procedure cannot probe into the truthfulness or otherwise of the allegations made in the complaint and proceed to analyse the materials which are produced in support of the allegations and more particularly, this court cannot look into the materials produced by the accused at this stage.
6. The learned counsel for the petitioner would rely upon the decision of the Honourable Supreme Court rendered in the case of State of Orissa Vs. Debendra Nath Padhi [2005-1-SCC-568], wherein the Honourable Supreme Court, while dealing with the trial court’s power to consider any material filed by the accused under Section 227 of Code of Criminal Procedure, has held that at the stage of framing of charge, the defence of the accused cannot be put forth and permitting the accused to adduce his defence at that stage is against the criminal jurisprudence. The learned counsel placed reliance on the observations made by the Honourable Supreme Court in the said decision that under Section 482 of Code of Criminal Procedure, the High Court has got wide powers and to prevent abuse of process of court or otherwise to secure the ends of justice, material of unimpeachable character of sterling quality could be considered under exceptional circumstances. The Honourable Supreme Court has held thus:-
29. Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of the Constitution is unlimited where under in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal Case.
7. In the said judgement, the Honourable Supreme Court has categorically held that the trial court can consider only the material produced by the prosecution and no provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of framing of charges. It further held that the decisions made in the case of Satish Mehra Vs. Delhi Admn. [1996-9-SCC-766], taking a contrary view held not correctly decided.
8. In the case of State of Bihar Vs. Murad Ali Khan and others [AIR-1989-SC-1], the Honourable Supreme Court has pointed out that the High Court is called upon to exercise its jurisdiction to quash the proceedings at the stage when the learned Magistrate takes cognizance of an offence. The High Court is guided by the allegations. Where those allegations set out in the complaint or the charge sheet do not in law constitute or spell out any offence and that resort to criminal proceedings, then the circumstances amount to abuse of process of court. Therefore, it is clear that the High Court cannot analyse the truth or otherwise of the allegations made in the complaint on the basis of the materials, which could not be relied on without legal proof.
9. Indisputably, on a perusal of the complaint, it prima facie discloses the ingredients for an offence under Section 138 of the Negotiable Instruments Act. The allegations made by the complainant in law constitute and spell out an offence under Section 138 of the Negotiable Instruments Act.
10. The only question that could be considered at this stage is as to whether continuance of the proceedings would be an abuse of process of court. The Honourable Supreme Court in various decisions examined the scope of power under Section 482 of Code of Criminal Procedure and has reiterated the principle that the High Court can exercise its inherent jurisdiction for quashing the criminal proceedings only when the allegations made in the complaint do not constitute an offence or the exercise of power is necessary either to prevent the abuse of process of court or otherwise to secure the ends of justice. No inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case, wherein such power could be exercised.
11. In the present case, the allegations in the complaint are specific and clear that the cheque issued by the petitioner has been presented for encashment and the same has been returned with an endorsement account closed and a statutory notice has been issued and the same has been received, but the petitioner has failed to pay the cheque amount. Section 138 of the Negotiable Instruments Act creates a legal fiction for commission of an offence when a cheque is dishonoured either due to insufficiency of funds or account closed or the amount exceeds the amount arranged.
12. The court, while exercising its jurisdiction for taking cognizance of an offence under Section 138 of the Negotiable Instruments Act, shall require to consider only the allegations made in the complaint and the sworn statement of the complainant and his witnesses if any. This court cannot take into consideration the complaint given by the petitioner against the respondent for the offences alleged in the said complaint and the judgements rendered by the civil court wherein there is an observation with regard to the genuineness of the cheque in question.
13. The learned counsel for the petitioner persuades this court to take a view that the continuance of the proceedings would be an abuse of process of court only on the basis of additional materials produced by him. The said materials have not been admitted or accepted by the 1st respondent. The truthfulness or otherwise of the allegations made in the complaint is a matter for proof. When the materials relied on by the petitioner are required to be proved, no inference can be drawn on the basis of those materials to come to a conclusion that the complaint is a false one.
14. Keeping in view the facts and circumstances of the case, I am of the considered view that it is for the trial court to go into the details of the allegations made against the respondent by the petitioner. Even assuming that the complainant had a score to settle against the petitioner, the same by itself may not be a ground to quash the criminal proceedings.
15. For the reasons stated above, the impugned complaint cannot be quashed at this stage and this Criminal Original Petition is liable to be dismissed and accordingly, it is dismissed.
Srcm
To:
The learned Metropolitan Magistrate VIII, George Town,
Chennai