TMI Blog2009 (2) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of a debt which is not legally enforceable and that the complaint is even otherwise not maintainable as the respondents were not competent are registered under Section 4 of the Punjab Registration of Moneylenders Act and thus were not entitled to initiate the proceedings in the nature of recovery of the amount so lent by them as alleged. He has relied upon the following judgments in support of his aforesaid submissions; . (i) Ravinder Goel Anr Vs. State Anr 2007 (1) JCC 465 (ii) D.A.Mehta Ors. Vs. The Regional Director E.S.I. Corporation reported in 1991 (3) CRIMES 72, (iii) Pepsi Foods Ltd. Vs. Special Judicial Magistrate, reported in 1998 SCC (Crl.) 1400, (iv) G.Pankajakshmi Amma Ors Vs. mathai Mathew (Dead) through LRS and Anr reported in (2004) 12 Supreme court Cases 83; And (v) Krishnam Raju Finances Vs. Abida Sultana Ors 2004 (2) JCC (NI) 130. 3. Arguments were heard on the question of admissibility of such a petition the petitioner in addition to oral submission, also filed a written note. 4. In the case of Pepsi Food Limited and Anr. Vs. Special Judicial Magistrate and Ors. (1998) 5 SCC 749 which has been relied upon by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 227 of Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to. 5. Thus, the crux of the aforesaid judgment is that the powers vested in this Court under Section 482 of Cr.P.C and under Article 227 of the Constitution of India would depend upon the facts and circumstances of each case with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 6. In the case of Chandrapal Singh Vs. Maharaja AIR 1982 SC 1238 it was held that; 11.A frustrated landlord after having met his waterloo in the hierarchy of Civil Courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous. In para 14 it was also said; We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by chea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present code. 9. In the case of Kailash Verma Vs. Punjab State Civil Supplies Corporation and Anr. 2005 2 SCC 571 where the petitioner wanted to invoke provisions under Section 482 after exercising right of revision, the Apex Court held as under: 29. Section 482 of the Criminal Procedure Code starts with the words Nothing in this Code‟. Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is set out in Satya Narayan Sharma case this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is for the repayment of the aforesaid loan amount the accused handed- over the post dated cheque 05.10.2004 bearing no. 938613 drawn on Punjab National Bank, Greater Kailash Part-II, New Delhi, which was not a cheque for security but had been issued for repayment of loan amount after a period of 3 months from the date of giving of the loan and includes the element of interest also. However when the cheque was presented for encashment on 16.11.2004 it was returned unpaid with the endorsement funds insufficient . Accordingly the respondent/complainant issued a legal notice dated 22.11.2004 by registered post as well as under certificate of posting which fact is born out from the complaint but despite receipt of the said notice the petitioner failed to make the payment in lieu of the aforesaid cheque and, thus, he became liable to be prosecuted under section 138 read with 142 of Negotiable Instruments Act 1881. 14. It is also borne out from the order passed by the Learned Magistrate that before issuing the summons an affidavit in lieu of the preliminary evidence was also filed, arguments were also addressed and it was only after carefully scrutinizing the preliminary evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) The payee or the holder induce 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, 3[ within thirty days ] of the receipt of information by him from the bank regarding the return of the cheques 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. 142. Cognizance of offences [Cognizance of offences Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) No court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) Such complaint is made within one month of the date on which the cause of action arises under clause (C) of the proviso to section 138: [ Provided that the cognizance of a complaint may be taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that the cheque was issued to repay the loan. Moreover this issue even if has can only be raised during evidence. Reference can be made to a Judgment delivered by the Apex Court reported in the case of A.V. Murthy Vs. B.S. Nagabasavanna (2002) 2 SCC 642 wherein it has been held in view of Sections 118 and 139 of the Negotiable Instruments Act, Section 25(3) of the Contract Act, 1872 and in the presence of a documentary evidence which might amount to acknowledgement reviving the period of limitation. The present case was not one where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. However, these are matters to be agitated before the Magistrate by way of defence of the respondent. But at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability which was not legally enforceable, was clearly illegal and erroneous. Therefore, it was held that the Sessions Court and the High Court erred in quashing the complaint proceedings. 20. I have also gone through the other judgments cited by the petitioner but they are of no help in his case in the light of the discu ..... 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