High Court of Delhi

Versha Negi Vs. State of NCT Delhi and Ors.

MANU/DE/4122/2023

03.07.2023

Banking

Court can exercise power under Section 482 of the CrPC, if the complaint on the face of it does not make out any case against the accused

The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), praying for quashing of the Criminal Complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 ('NI Act').

In the instant case, the Respondent bank/complainant had filed a complaint under Section 138 of the NI Act. The learned Metropolitan Magistrate relying upon the complaint, which was supported with pre-summoning evidence given by the respondent/complainant, took cognizance under Section 138 of the NI Act and passed the summoning order.

Section 138 specifically mentions that, the cheque issued for the discharge of "debt" and "other liability". It is therefore, not necessary that when the cheques are issued, the drawer had any debt to discharge on the date of issuance. The debt or any liability is to exist, when the cheque in question is presented for encashment.

In the instant case, the issuance of the blank cheques is not disputed by the Petitioner. There is no dispute that the cheques belonged to the Petitioner. When the cheque is signed, leaving blank all other particulars, and handing over to the payee authorizing him to fill up the blanks as agreed upon, attracts penal provision of Section 138 in case of dishonour.

It is also equally settled that while exercising the powers under Section 482 of the CrPC at the instance of an accused, the High Court ought to be circumspect. It should not interfere unless some unimpeachable and uncontroverted evidence is placed on record to indicate that the allegations made are bereft of any merit. Thus, in a case where the basic averments have been made which point to the issuance of the cheque and its dishonour; in the absence of any unimpeachable and uncontrovertible evidence, the defences such as the existence of liability etc. are a matter of trial.

The power of quashing criminal proceedings while exercising power under Section 482 of the CrPC should be exercised very sparingly and with circumspection. The Court, at this stage, is not to embark upon an inquiry as to the reliability or genuineness of the allegations made in the complaint. The Court can exercise power under Section 482 of the CrPC, if the complaint on the face of it does not make out any case against the accused or if any evidence of an unimpeachable nature is produced to support the case of the accused. The only ground taken by the Petitioner in the present case is that the cheque was given to the bank for the purpose of repayment of EMIs and not for the total outstanding amount.

The Petitioner has not disputed that the cheque was issued by her towards the loan taken from Respondent No. 2 bank. Thus, the defense whether the cheque was given as a security or whether there was any outstanding liability or not, is a question of fact that will be determined after the recording of the evidence.The Petitioner, in the present case, has not made out a case for this Court to interfere while exercising jurisdiction under Section 482 of the CrPC at this stage. Petition dismissed.

Tags : Complaint Jurisdiction Quashing

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