Dharm Singh vs State Of Uttarakhand & Another

Ashish Naithani, J

Heard learned counsels for the parties, and perused the records.

By means of the present application under Section 482 Cr.P.C., the applicant seeks quashing of the proceedings arising out of a complaint under Section 138 of the Negotiable Instruments Act, 1881, pending before the learned judicial Magistrate, Jaspur District, Udham Singh Nagar in Complaint Case no. 670 of 2019.

It was submitted that the applicant is not under any debt or liability towards the respondent. According to the complaint, the money was advanced by respondent no. 1 to the son of the Applicant. In lieu, therefore, the son of the Applicant handed over a check signed by the applicant to respondent no. 1.

The core of the applicant's contention is that the cheque in-question was issued without any legally enforceable liability and that continuance of the criminal proceedings amounts to an abuse of process.

It is, however, evident that the dispute pertains to a cheque that was allegedly issued by the applicant and later dishonoured on presentation. The very foundation of the complaint rests on the presumption of liability under Section 139 of the Negotiable Instruments Act, which is a rebuttable presumption, and the burden to rebut the same lies upon the drawer of the cheque.

This Court is not persuaded by the submission that mere denial of liability or existence of a defence would justify quashing of proceedings at the threshold. It is well settled that the defence of the accused, howsoever plausible it may appear, cannot be looked into at the stage of deciding an application under Section 482 Cr.P.C.

The Hon’ble Supreme Court in Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330, has laid down that the inherent jurisdiction of the High Court under Section 482 Cr.P.C. ought not to be exercised to stifle legitimate prosecution, particularly when the complaint discloses commission of an offence on its face.

The applicant has not been able to demonstrate that the complaint or the summoning order suffers from such legal infirmity or absurdity as would attract the limited grounds recognised in law for quashing proceedings.

In Anoop Kumar v. State of U.P., (2019) 13 SCC 598, it was reiterated that the issue of whether a cheque was issued in discharge of a legally enforceable debt is a matter of trial. It cannot be pre-emptively adjudicated upon under the garb of a petition under Section 482 Cr.P.C., especially when such issue is deeply rooted in disputed facts.

In the present case, the question as to whether the cheque was issued in the discharge of a legally enforceable debt, or was misused or obtained without consent, are all matters that necessitate evidence. The trial court is the appropriate forum to record evidence and written findings on such disputed facts. This Court, while exercising its inherent jurisdiction, cannot undertake a mini-trial nor weigh the probative value of evidence at this stage.

No case is made out to invoke the extraordinary jurisdiction of this Court under Section 482 Cr.P.C. The continuation of the trial does not appear to be manifestly unjust or legally untenable. On the contrary, permitting the trial to proceed would enable all concerned to have the matter adjudicated on merits.

After hearing the learned counsel for the parties and on perusal of the record, this Court finds no reason to interfere. The Criminal Miscellaneous Application No. 1923 of 2021 stands dismissed.