Smt. Savita Popli vs Mahindra and Mahindra Financial Services Limited

Umesh Chandra Dhyani, J.—By way of present application, petition, moved u/s 482 of Cr.P.C., the applicant seeks to quash the summoning order dated 16.12.2009, as well as the entire proceedings of criminal case No. 2105 of 2009, u/s 138 of the Negotiable Instruments Act, pending in the Court of Judicial Magistrate, Haldwani, District Nainital. A criminal complaint case was filed by the complainant (respondent herein) against the accused (applicant herein) u/s 138 of the Negotiable Instruments Act, 1881 in the Court of Judicial Magistrate, Haldwani. After recording the statement of the complainant in the form of affidavit u/s 200 of Cr.P.C. and also on the basis of documentary evidence filed u/s 202 of Cr.P.C., the accused was summoned to face the trial u/s 138 of the Negotiable Instruments Act, vide order dated 16.12.2009. Aggrieved against the said order, present application u/s 482 of Cr.P.C. was filed by the accused (applicant herein).

It was stated by the complainant in the complaint that the accused obtained a loan of Rs. 1,40,000/- from the '' complainant on 1.9.2005. The loan amount was to be repaid by the borrower (applicant herein) to the complainant in 36 equal monthly instalments. Since the accused never repaid the loan amount to the complainant in time, therefore, a sum of Rs. 1,12,852/-was outstanding against her. When complainant contacted the accused, she gave a cheque of Rs. 1,12,852/- to the agent of the complainant on 6.8.2009. When said cheque was presented for encashment in the bank, the same was returned with the endorsement "insufficiency of funds". Complainant gave oral information to the accused regarding dishonour of cheque, but she did not repay the same. Thereafter, the complainant gave a registered notice to the accused through her Counsel Mr. Ganesh Singh Negi at her address, but the said notice was returned unserved. Inspite of the knowledge of notice, accused did not make payment of Rs. 1,12,852/- to the complainant and, hence, the criminal complaint case u/s 138 of the Negotiable Instruments Act.

Complainant filed the affidavit of Amrendra Dubey, Legal Karya Palak, Mahindra and Mahindra Financial Services Ltd. Copy of the registered notice dated 19.9.2009 sent on behalf of the complainant to the accused was also enclosed. Original cheque, bank memo, copy of the notice, postal receipt and registered envelope were also filed by the complainant. Foundation of criminal offence u/s 138 of Negotiable Instruments Act is, therefore, laid against the accused applicant.

Complaint u/s 138 of the Negotiable Instruments Act must contain the following ingredients, viz., (i) that there was a legally enforceable debt; (ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; (iii) cheque so issued had been returned due to insufficiency of funds.

Learned Counsel for the applicant argued, among other things, that (i) the notice allegedly sent by the complainant was not received by the accused and, (ii) that there was no legally enforceable debt. It is a settled law that the factual controversies need not to be gone into by this Court in exercise of its inherent jurisdiction. Liberty is, however, granted to the applicant to raise all these factual pleas before the Court concerned for obtaining his discharge/acquittal at an appropriate time.

In the instant case, prima facie, the complainant was able to bring out a case u/s 138 of the Negotiable Instruments Act against the accused-applicant. Learned Judicial Magistrate, Haldwani, therefore, committed no mistake in summoning the accused to face the trial for the offence complained of against him.

Since, foundation of criminal offence u/s 138 of the Negotiable Instruments Act is laid against the accused-applicant, therefore, it does not appear to be a fit case for interference by this Court in exercise of its inherent jurisdiction.

Hon''ble Apex Court in Amit Kapoor Vs. Ramesh Chander and Another, , has laid down certain principles in respect of exercise of jurisdiction u/s 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Where the factual foundation for an offence has been laid down, the Courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate Courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice.

Inherent jurisdiction u/s 482 of Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. The applicant, in the instant case, is unable to pass those tests. Application u/s 482 of Cr.P.C. is, therefore, dismissed with the liberty as above.