S.S. Dwivedi, J.@mdashThis petition has been filed by the applicant u/s 482, Cr.PC the quashment of the criminal complaint Case No. 1940/2004 (Kamlakar v. Jayanti Bhai) pending before the Court of CJM, Khandwa for the offence u/s 138 of the Negotiable Instrument Act (hereinafter N.I. Act for brevity).
2. The factual matrix of the case in brief are that the non-applicant complainant has filed a private complaint before the CJM Khandwa u/s 138 of the NI Act, with the allegations that the petitioner/applicant has borrowed cash loan of Rs. 2,81,138/- from the complainant and for this amount issued an advance cheque No. 737409 dated 10-6-2004 on his account maintained in State Bank of India, Narmada Nagar Branch, Khandwa payable to self. It is also contended by the non- applicant/complainant that the applicant had assured him that the loan amount shall be paid to him on the presentation of the cheque. The complainant deposited the aforesaid cheque in his account in Canara Bank at Khandwa on 14-7-2004. When this cheque was sent to State Bank of India Ganga Nagar Branch for realization of the cheque amount the aforesaid cheque had been return unpaid with the report that in sufficient funds in the account of the drawer. When this information received to the complainant then the non-applicant/complainant issued the statutory notice to the present petitioner by registered post demanding the amount of the concern cheque; and thereafter filed the aforesaid complaint u/s 138 of the NI Act. The learned Trial Court CJM Khandwa issued a summon to the present petitioner and after his appearance also framed the charge against the petitioner accused for the offence u/s 138 of the NI Act. Feeling aggrieved by the aforesaid order of cognizance and framing of charge petitioner has filed this petition u/s 482, Cr.PC for the quashment of the aforesaid proceeding.
3. It is contended by the learned Counsel for the applicant that the disputed cheque was not in the name of the complainant/non-applicant. He has not "holder in due course" of the concern cheque, no liability for the payment of any debt is on the petitioner/accused. Therefore, in such circumstances the complaint u/s 138 of the NI Act is not maintainable. Consequently, prayed for the quashment of the aforesaid complaint.
4. Per contra, the learned Counsel for the non-applicant/complainant contended that as per the pleadings of the non-applicant, it is apparent that the present applicant/accused borrowed cash loan from the complainant and for the payment of the aforesaid loan. The applicant accused had issued the aforesaid cheque in favour of the complainant which has been dishonour by the concerned Bank. Therefore, on the basis of this averments prima facie case u/s 138 of the NI Act is made out and there is no ground for the quashment of the aforesaid proceeding. Therefore prayed for the dismissal of the petition.
5. To appreciate the said contention, reference to the provisions of u/s 138 of the NI Act may be useful which has been added by virtue of Amending Act w.e.f. 5-9-88 it read as under :--
138. Dishonour of cheque for insufficiency etc. of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt other liability, is returned by the bank unpaid, either because of the amount of money standing, to the credit of that account is insufficient to honour the cheque or that it exceeds the amount managed to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing containing in this section shall apply unless :
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation :-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
6. The glance of the above provisions clearly indicates that it is not an ingredient of Section 138 of the NI Act that the cheque should be drawn in the name of another person. All that is required is that the cheque should be drawn by the person from the account maintained by him. It can be drawn in his own name as self or in the name of third person but it should be for the payment of some debt. The complaint u/s 138 can be made by the payee or the holder of the cheque in due course. For this it is useful to refer Section 9 of the NI Act which read as under :--
9. "Holder in due course".-- "Holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if (payable to order), before the amount mentioned in it became payable and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title [See u/s 118(a) also].
7. Thus the holder in due course is normally unambiguous. The "holder in due course" is a person who is possessor of an instrument even then it is payable to bearer. What is required is that he must be in possession of the aforesaid instrument.
8. Looking to the facts of the present case it is apparent that the concerning cheque is in possession of the complainant who produced it for payment before the Bank. It is also clear that the applicant accused borrowed the loan amount from the complainant and for the payment of aforesaid loan amount accused issued the aforesaid cheque to the complainant. It is still to be proved by the appropriate evidence before the Trial Court as to whether this cheque has been properly issued by the applicant/accused in favour of the complainant or not; then only finding could be given as to whether the applicant/complainant is guilty for the offence of the u/s 138, NI Act or not. Therefore, it is prematured at this stage to hold the applicant/accused not guilty u/s 138 of the NI Act.
9. As per the provisions of Section 482 is concerned Hon''ble Apex Court in
9. The scope for interference with an order framing charge in terms of Section 482 of the Code is extremely limited.
10. Exercise of power u/s 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide 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. It is to be exercised ex debit justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the Court may examiner the question of fact. When a complaint is sought to be quashed. It is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
10. Therefore, in view of the law laid down by the Hon''ble Supreme Court in the present case, it is apparent that this case that looking to the averments made in the complaint, a prima facie case is made out u/s 138 of the NI Act against the applicant and this Court at this initial stage can not express any view on the merits of the proposed evidence which ought to be produced by the complainant in his defence.
11. Therefore, prima facie no ground is made out in the present case for the quashment of the concerning criminal proceedings pending before the CJM Khandwa for the offence of 138 of NI Act against the petitioner/accused in Cr. Case No. 1940/2004.
12. Consequently, the petition filed by the applicant being devoid of merits is dismissed.
