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TMI Blog2024 (7) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... hall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). It was asserted that the complainant firm manufactures pharma products. Anil Kumar is the Managing Partner and he is looking after the affairs of the firm. Accused No.1 is a Private Limited Company and accused No.2, is the Managing Director /authorized signatory of the Company. He is looking after the affairs and managing the daily affairs of the Company. The accused were regular customers of the complainant and they used to purchase medicines from the complainant on credit. A sum of Rs.1,06,03,924/- (One Crore Six Lakhs Three Thousand Nine Hundred Twenty-Four) was due against the accused on 09.09.2017. purchased the medicines worth Rs.8,72,589/-(Rupees Eight Lakhs Seventy Two Thousand Five Hundred Eight Nine) through bill bearing No. 00195. The accused No.2 issued a post-dated cheque for a sum of Rs.8,72,589/- for discharging his liability. The accused No.2 also issued for another cheque sum of Rs.5,90,000/- to discharge the legal liability. The accused stopped business with the complainant. An amount of Rs. 1,13,46, 371/- (Rupees One Crore, Thirteen Lakhs, Fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.33,00,000/-. It was further agreed that an amount of Rs.12,00,000/- out of Rs. 13,35,254.81 GST Reverse Charges be set off against the outstanding amount. Accused No. 2 paid an amount of Rs.33,00,000/- to the creditor of the complainant vide transaction dated 01.09.2020 and SS Printpack confirmed the payment of the amount after adjusting Rs.12,00,000/- Nothing is due towards accused No.2. A certificate was also issued by Chartered Accountant Sumit Sabharwal & Associates dated 07.01.2023 to this effect. The complaint was wrongly filed. No preliminary evidence was led to establish the existence of legally enforceable debt. The summoning order was passed on 03.02.2018 without conducting any inquiry under Section 202 of Cr.P.C. The complainant failed to withdraw the legal proceedings despite the agreement. No inquiry was conducted by examining the witnesses. Therefore, it was prayed that the present petition be allowed and summoning order and the complaint pending before the learned Trial Court be set aside. 4. I have heard Mr Gagan Oberoi, learned Counsel for the petitioner and Ms Avni Kochhar, Deputy Advocate General, for respondent No.1/State 5. Mr. Gagan Oberoi, learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. 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. 27.3. 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. 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 interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge sheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to an 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 debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. 11. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed : 12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC 568], this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jima Mamtaj, (2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479] , Abhijit Pawar v. Hemant Madhukar Nimbalkar [Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192] and Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Civ) 713 : (2020) 2 SCC (Cri) 828] ) There has been a divergence of opinion amongst the High Courts relating to the applicability of Section 202 in respect of complaints filed under Section 138 of the Act. Certain cases under Section 138 have been decided by the High Courts upholding the view that it is mandatory for the Magistrate to conduct an inquiry, as provided in Section 202 of the Code, before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the court, it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process, if req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of the examination of the complainant by way of an affidavit. There is no specific provision in relation to the examination of the witnesses also on the affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202(2) of the Code is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on the affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202. 14. Therefore, in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate it if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial." ( emphasis supplied ) 18. This position was reiterated in State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 2019 SCC OnLine SC 132 wherein it was observed : 22. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 CrPC is not the same at the time of framing the charge. For issuance of summons under Section 204 CrPC, the expression used is "there is sufficient ground for proceeding..."; whereas for framing the charges, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew in Bharat Metal Box Company Limited, Hyderabad and Others vs. G. K. Strips Private Limited and another, 2004 STPL 43 AP, and held: "9. This Court can only look into the complaint and the documents filed along with it and the sworn statements of the witnesses if any recorded. While judging the correctness of the proceedings, it cannot look into the documents, which are not filed before the lower Court. Section 482 Cr.PC debars the Court to look into fresh documents, in view of the principles laid down by the Supreme Court in State of Karnataka v. M. Devendrappa and another, 2002 (1) Supreme 192. The relevant portion of the said judgment reads as follows: "The complaint has to be read as a whole. If it appears that on consideration of the allegations, in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When information is lodged at the Police Station and an offence is registered, then the mala fides of the informant would be of secondar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs arising from a police report by the High Courts in the exercise of jurisdiction under section 482, Cr. P.C. not being substantially different from the tests laid down for quashing of a process issued under section 204 read with section 200, the High Courts on recording due satisfaction are empowered to interfere if on a reading of the complaint, the substance of statements on oath of the complainant and the witness, if any, and documentary evidence as produced, no offence is made out and that proceedings, if allowed to continue, would amount to an abuse of the legal process. This too, would be impermissible if the justice of a given case does not overwhelmingly so demand." ( Emphasis supplied ) 25. Therefore, it is not permissible to look into the material filed by the petitioner with the petition and the Court has to rely upon the contents of the F.I.R. and the material collected by the police during the investigation. 26. Secondly, the complaint pertains to the year 2018 and as per the petitioner, the matter was settled in the year 2019 after the issuance of the cheque. Hence, no advantage can be derived from the documents annexed to the complaint. 27. It was submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35] ] 36. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 : (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40] ]. Therefore, the mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption. 37. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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