Virendra Arya v. State of U.P. and Another

Court No. - 90 Case :- APPLICATION U/S 482 No. - 39610 of 2023 Applicant :- Virendra Arya Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amrendra Pratap Singh,Shashi Prabha Pandey Counsel for Opposite Party :- G.A. Hon'ble Dinesh Pathak,J.

¶1Heard learned counsel for the applicant and the learned A.G.A.

¶2The applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. assailing the summoning order dated

21.01.2020 passed by the Chief Judicial Magistrate, Chandauli in complaint case no. 2323 of 2019 (Laxmi Shankar Yadav vs. Virendra Arya) under Section 138 Negotiable Instrument Act (in brevity N.I. Act) and also the entire proceeding of the aforesaid case.

¶3Facts culled out from the record are that respondent no. 2 has moved a complaint dated 14.05.2019 against the present applicant levelling allegation that the present applicant is indulge in a real estate business who has assured the complainant (respondent no.2) to sell a 2 BHK flat in Gautam Budh Nagar (NOIDA). The complainant has paid earnest money amounting Rs.50 lakhs, however, the property has not been transferred in the name of complainant. At later stage, the applicant has furnished cheque bearing no. 785172 dated 30.11.2018 amounting Rs.10 lakhs. However, when the cheque was presented before the drawee bank for encashment, same was dishonoured for want of sufficient funds.

¶4Having considered the complaint qua dishonour of cheque and notice sent to the present applicant (accused), learned Chief Judicial Magistrate has issued process under Section 138 N.I. Act, vide order dated 21.01.2020, which is under challenge before this Court.

¶5It is submitted by learned counsel for the applicant that before filing of complaint dated 14.05.2019, the present applicant has already paid Rs.2 lakhs on two different dates and till date, he has paid total Rs.22,50,000/- to the complainant which has not been adjusted by him while moving the complaint, therefore, complaint itself is not maintainable in light of the ratio decide by the Hon'ble Supreme Court in the case of Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel & Another (Criminal Appeal No. 1497 of 2022 decide on 11.10.2022) reported in 200 LiveLaw (SC) 830.

¶6Per contra, learned A.G.A. has vehemently opposed the submissions as raised by learned counsel for the applicant and supported the summoning order dated 21.01.2022 with a contention that on the date of cause of action when the cheque was dishonoured the applicant was liable to pay the entire amount as mentioned in the cheque in lieu of advance money which has been paid by the complainant, therefore, the applicant has rightly been summoned. It is further contended that the plea of the applicant qua part payment may be considered on the application/objection to be moved by the present applicant before the court concerned.

¶7Having considered the rival submissions as advanced by the learned counsel for the applicant as well as the learned A.G.A. and perusal of record, it is manifested that complaint under Section 138 N.I. Act has been moved owing to dishonour of cheque bearing no. 785172 dated 30.11.2018 amounting Rs.10 lakhs. As per case of the complaint, the present applicant is under legal obligation to pay Rs.50 lakhs to the complainant which has been given to him as an earnest money to transfer a 2 BHK flat. Intending to return the money, the applicant has furnished a cheque amounting Rs.10 lakhs which has been dishonoured for want of sufficient funds. On the date of presentation of cheque for its encashment and the cheque return memo dated 25.03.2019, the present applicant was obligated to pay the earnest money which was received by him pertaining to transfer of flat in the name of respondent no. 2 (complainant). Till 25.03.2019 (date of cheque return memo) no amount was paid by the present applicant. It is his own case that he has given Rs.1 lakh on 03.05.2019 and Rs. 1 lakh on

13.05.2019 (total Rs.2 lakhs) and till date he has returned total Rs.22,50,000/- to the complainant. In the case of Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel & Another (Supra), relied upon by learned counsel for the applicant, the Apex Court has summarised the matter relating to N.I. Act in paragraph 30 which is quoted herein below : "30. In view of the discussion above, we summarise our findings below :

(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation;

(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;

(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any, if the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;

(iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the 'legally enforceable debt' on the date of matunrity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and

(v) The notice demanding the payment of the ' said amount of money' has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 1138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. Since in this case, the first respondent has not committed an offence under Section 138, the validity of the form of the notice need not be decided."

¶8In the cited case, as mentioned above, the Apex Court has considered the question as to whether Section 138 N.I. Act would still be attracted when the drawer of the cheque makes a part payment towards debt or liability after the cheque is being drawn but before the cheque is encashed, for dishonour of cheque which represents the full sum. Considering the aforesaid ratio decided by the Apex Court in the given circumstances of the present case, the liability of the present applicant to pay Rs.50 lakhs to the complainant on the date of dishonour of cheque cannot be, prima facie, denied. Present matter, however, pertains to only cheque bearing no. 785172 dated 30.11.2018 amounting Rs.10 lakhs. As per case of the present applicant, till date, he has paid Rs.22,50,000/- to the complainant. It appears that all the remaining payments, which have been shown to be given to the complainant, have been made after filing of the complaint dated 14.05.2019 except Rs.2 lakhs which was allegedly paid on 03.05.2019 and

13.05.2019 that too after dishonour of cheque. Therefore, prima facie, on the date of dishonour of cheque and on the date of filing of the complaint the cheque amount was legally enforceable debt. However, learned counsel for the applicant is disputing the amount of cheque being 'legally enforceable debt'. In my considered opinion, the submissions as raised by learned counsel for the applicant is unfounded. Facts of the case reveals that total amount was Rs.50 lakhs, however, cheque in question which is subject matter of complaint, is only with respect to Rs.10 lakhs. The ratio as decided by the Apex Court in the case of Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel & Another (Supra) is not fully applicable in the facts of the present case, considering the legal liability of the present applicant to pay Rs.50 lakhs to the complainant. Remaining amount which has been paid or to be paid is subject matter of scrutiny which can more appropriately be examined by the trial court on the objection to be filed by the present applicant. He has still an opportunity to defend his case before the court concerned, bringing all the relevant facts with respect to payment of money made by him in lieu of earnest money he received. I neither found any abuse of the process of law to the proceeding which has been challenged before this Court nor any justifiable ground to pass any order for the purposes of securing the ends of justice, therefore, there is no justification to exercise inherent power of this Court under Section 482 Cr.P.C.

¶9Record reveals that learned counsel for the applicant has raised disputed question of fact qua payment of legally enforceable debt. In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.

¶10It has been held by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686 3; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706 that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception.

¶11In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :- "61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court."

¶12In Criminal Appeal No. 675 of 2019 arising out of SLP (Crl.) No. 1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated

31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another.

¶13In the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. Criminal Appeal No(s). 296 of 2021 (Arising out of SLP(Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows : "23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirely shall have to be examined on the basis of the allegation made in the complaint/ FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record."

¶14The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335). The relevant para is mentioned hereunder : "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently 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 bur engrafted in any of the provisions of the Code on 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 10 private and personal grudge."

¶15It has been further elucidated recently by Hon'ble Apex Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.

¶16Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in AIR 2021 SC 1918, Full Bench of the Apex Court while considering the powers of quashing under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India has illustrated the circumstances under which quashing of a criminal case can be done and/or interim order can be granted.

¶17Therefore, the disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

¶18Having considered the rival submissions advance by learned counsel for the applicant and learned A.G.A. and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground made out to consider the merits of the instant case. As such, prayer of quashing as made in instant application is hereby refused.

¶19Accordingly, the present application under Section 482 Cr.P.C. is hereby dismissed.

¶20Before parting, learned counsel for the applicant submits that in all sections, as mentioned in the FIR, maximum punishment is seven years or less than 7 years, therefore, the bail application if filed by the present applicant may be considered in the light of the dictum of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in (2021) 10 Supreme Court Cases 773. In the cited case, Hon'ble Supreme Court has given certain guidelines for deciding the bail applications by categorising the offences.

¶21Considering the entire facts and circumstances of the case and the dictum of Hon'ble Supreme Court, I think it appropriate that in case, the present applicant appears/surrenders before the concerned court below and move bail application within two weeks, the same shall be considered and decided in accordance with law, considering the judgment of Hon'ble Supreme Court, expeditiously as early as possible. Order Date :- 16.11.2023 VR High Court of Judicature at Allahabad