TMI Blog2023 (8) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... to existence of legally recoverable debt or liability. The averment in the complaint would be supported by legal presumption under Section 138 and 139 of Negotiable Instruments Act at trial. The documents with regard to dissolution of partnership and the statement contained therein, may be probable defence of the accused which cannot be gone into at the preliminary stage of proceeding i.e., cognizance and framing of charge. From the complaint and the statement of complainant, no inference of absolute lack of legally recoverable debt or liability can be drawn. It cannot be said that the allegations as reflected in the complaint, if taken at their face value and accepted in their entirety, would not be sufficient to constitute an offence p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Being aggrieved by the registration of the complaint, cognizance and framing of charge against the petitioner, entire proceeding is challenged in the petition on the ground that no legally recoverable debt or liability was in existence for issuance of the cheques. It is further stated in the petition that the petitioner and respondent/complainant were business partners in the firm N.K.B. Infrastructures vide partnership deed dated 24/10/2016. Same partnership firm was dissolved vide dissolution deed dated 01/12/2017. Since dissolution of the partnership, no transaction took place between the parties, therefore, no dues were in existence against the petitioner. The partnership dissolution deed dated 01/12/2017 also mentions that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the parties, therefore, no offence under Section 138 of Negotiable Instruments Act was made out. Per contra, learned counsel for the respondent/complainant submits that the averment in the complaint are sufficiently clear to the effect that the cheque in question were issued towards payment of loan advanced by the complainant to the accused with regard to their business and financial transactions. Learned counsel further submits that cheques were issued on the date of dissolution of partnership between the parties. Affidavit of Bhawani Singh Rajput (Accused No.2) specifically mentions this fact. The probative value and effect of the documents on record will be considered at the trial, therefore, no case for quashment of complaint and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2. 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. 27.4. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debitojustitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. [Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] ; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L S) 1201] .] 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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