Mohammad Maqbool Chopan/Pohloo vs Haji Ghulam Mohammad

This is a petition under Section 482 Cr. P. C for quashing a complaint bearing No.20/A pending before the Court of Chief Judicial Magistrate,

Bandipora, filed under Section 138 read with Section 142 of Negotiable Instrument Act, 1881. The complaint had been preferred by the complainant

on account of bouncing of a cheque for an amount of Rs.21, 50,000/. A notice was purportedly issued by the complainant through his counsel on the

petitioner and a postal receipt annexed with the complaint to show its service. It was alleged that despite receipt of legal notice, the accused had failed

to make the payment towards the dishonoured cheque within the prescribed period of 15 days, hence the complaint. The court below, based on the

complaint, took cognizance and issued process.

The petitioner is aggrieved of the action of court below in taking cognizance and issuing the process and challenges the same on the ground that the

court below committed an error in not appreciating the fact that the cheques on which the complainant had placed reliance and which allegedly had

bounced, had already been cancelled and notice thereof published in the newspaper on 15th of May, 2016. It was also stated that there was no amount

which was outstanding and payable to the complainant.

Heard counsel for the petitioners.

The scope of interference by the court in exercise of powers vested in it under Section 482 of the Central Procedure Code is no longer res integra.

According to the principles crystallized by the Apex Court in the State of Haryana & ors vs. Ch. Bhajan Lal & ors, AIR 1992 SC 60,4 the powers

under Section 561-A of the Cr. P. C (482) can be exercised in the following cases:

“1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their

entirety do not prima-facie constitute any offence or make out a case against the accused.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence,

justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.â€​

The Apex Court in Sanjeet Kumar vs. State of Bihar and Another, (2009) 12 SCC 136a lso has held that the parameters for exercise of inherent

powers under Section 482 of the Code could be exercised either on proof of abuse of process of any court or otherwise to secure the ends of justice.

On a bare perusal of the complaint it can be seen that there is a clear averment made by the complainant that the petitioner herein had issued a

cheque for an amount of Rs.21,50,000/ under his signatures drawn on J&K Bank Branch Bandipora in discharge of his liability towards the

complainant which bounced with a noting from the concerned branch that the funds were „insufficient‟. The complainant has alleged in the

complaint that a legal notice was served upon the petitioner requesting him to discharge his liability, which was not done leading to the filing of

complaint. It is not the case of the petitioner that he had responded to the legal notice or that the legal notice had never been received by him. The

defence set up by the petitioner is that the cheque had already been got cancelled by the petitioner and information published in the newspaper. This,

by itself, may not be a good ground for quashing the complaint while the same may be a matter of defence for the petitioner before the court below.

Having gone through the complaint and the documents placed on record and having heard counsel for the petitioner at length, in my opinion this is

not a fit case for quashing the complaint on the touchstone of the judgments discussed hereinabove.

Be that as it may, the instant petition is found to be without any merit and is, accordingly, dismissed along with connected CM.