In exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, 1973, the Court cannot quash a complaint under Section 138 of the Negotiable Instruments Act, 1881, where there are factual questions involved requiring adducing of evidence; as held by the High Court of Jammu & Kashmir and Ladakh, before the HON’BLE JUSTICE MR. PUNEET GUPTA, in the matter of Bharat Heavy Plate and Vessels Ltd. & Anr. vs. Ajay Kapoor [CRMC No.314/2012], on 01.12.21.
The facts of the matter are in connection with the alleged issuance of a cheque favour of the respondent by the petitioner, for payment of an amount of Rs.38,69,980/- purportedly as discharge of the liability of the petitioners towards the respondent for execution of work to the complete satisfaction of the petitioners. The respondent filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, due to the failure to encash the cheque when presented to the bank, and failure of payment despite adequate notice within the statutory period.
Aggrieved by the issue of process against them in cognisance of the complaint, the petitioners filed the petition under Section 561-A of the Code of Criminal Procedure, 1989 (Jammu & Kashmir), for quashing proceedings pending before the Court of the Judicial Magistrate, First Class, City Judge, Jammu.
The Learned Counsels for the petitioners, Mr. P. N. Raina, with Mr. J. A. Hamal, put forth the grounds for challenge of the complaint and the subsequent proceedings initiated through an order, firstly by stating that the cheque in question was made to be signed by the respondent through coercion. Secondly, the letter dates 27.11.2000 was indicative of no liability of the petitioners towards the respondent post the final bill of Rs. 1,48,192.92. The complaint was asserted to be an outcome of the cancellation of work allotted to the respondent. Additionally, it was submitted that the allegations made were absurd and inherently improbable, as the work being executed was on behalf of the Government of India, and no transaction was possible to be done by raising claim through cheque in favour of the respondent.
The Counsel also relied on precedents, wherein the High Court quashed proceedings taking into account peculiar facts of the case; in order to contend that the exercise of jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, 1973, must be by way of a just and rightful choice. The judgement in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors. was relied upon in order to emphasise on the guidelines laid down by the Supreme Court with regards to exercise of powers under Section 482. Additionally, it was argued that the complaint filed by the respondents was a mere abuse of the process of law.
The Learned Counsel for the respondent, Mr. Ravi Dogra, pointed out that the arguments put forth by the petitioners remain insufficient to quash the complaint. It was asserted that the letters mentioned were a matter of trial and factual aspects of the case cannot impart finality of the proceedings currently owing to limitations in critical analysis of facts by the Court in exercising its inherent powers.
The Honourable High Court of Jammu& Kashmir and Ladakh, in consideration of the facts and arguments of the case, held that, firstly, the contents of the letter presented as evidence would be required to be read in light of other facts that may surface during the trial, and thus, the High Court in the instant case will not be entitled to give its opinion on the present petition. Further, the Court noted that the cheque in question is dated 21.09.2000 whereas the letter relied upon by the petitioners was of 30.11.2000 meaning thereby that the that the document relied upon came into being only after the issuance of the cheque. Additionally, even the context of the said letter cannot form reason for dismissal of the complaint at the threshold.
Further, the Court observed that there is a presumption under law that the cheque issued is in discharge of some legal liability though the presumption can be rebutted by the accused during the course of trial. Therefore, the mere argument that the cheque was not proved to have been issued in discharge of the liability, and thus the complaint would be rendered not maintainable, would not hold good.
The Court placed reliance on the judgement in Rajeshbhai Muljibhai Patel & Anr. vs. State of & Anr., wherein it was held that when disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the Negotiable Instruments Act, 1881, ought not to be quashed by a High Court by taking recourse to Section 482 of the Code of Criminal Procedure, 1973.
The Court held that the arguments pertaining to coercion as well as the contention that the impugned order was without application of mind, were also dismissed as the Court found that the same must be taken up as a defence during trial, and there was no illegality found in the impugned order. Thus, the Court found no need to microanalyse and interfere with the impugned order, thus dismissing the petition for lack of merit.