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2017 (4) TMI 1038 - HC - Indian LawsComplaints filed under Section 138 of the Negotiable Instruments Act for the dishonour of the cheques - whether the complaints should be quashed? - whether merely because there is an arbitration clause will take away the right of the complainant to move for criminal prosecution? - Held that:- As held in S. W. Palanitkar vs. State of Bihar [2001 (10) TMI 1150 - SUPREME COURT] merely because there is an arbitration clause in a commercial transaction agreement, the same would not operate as a bar for instituting criminal prosecution, if such breach even prima facie constituted a criminal offence. An arbitration clause in a agreement in respect of business transaction is not a bar for filing a criminal complaint under Section 138 of the Negotiable Instruments Act for dishonour of the cheque. It is also settled law that merely because there is a civil remedy available, the same is not a ground to quash the criminal proceedings, if the allegations, prima facie, made out a criminal offence as well.In view of the above discussion, the contention as regards the arbitration clause should fail and is hereby rejected. Only because the possession of the premises came to be handed over to the complainant by terminating the lease agreement at an early stage, will not absolve the accused from their liability incurred under the agreement. The cheques, at the relevant point of time, could be said to have been issued in favour of the complainant in discharge of a legally enforceable debt. Indisputably, on the date when the cheques were issued, there was a debt / liability in presenti in terms of the lease agreement. However, I leave it upon the Trial Court to look into this issue after appreciating the evidence that the parties may lead in the course of the trial. Ordinarily, a defence of an accused, although appears to be plausible, should not be taken into consideration for exercise of jurisdiction under Section 482 of the Cr.P.C. Section 142(c) invests certain Magistrates with the power of trying offences punishable under Section 138. When power is given to try an offence, it includes the power to convict or acquit and, in case of conviction, to exercise the sentencing discretion also to award an appropriate sentence, allowed by law. In order to convict an accused, the court must find him guilty. No case is made out for the quashing of the two complaints under Section 138 of the Negotiable Instruments Act.
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