P K Bajaj & Anr v. State NCT of Delhi & Anr

PRATIBHA RANI, J

MAY 10, 2012 "st"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on : 26th APRIL,2012 Pronounced on : 10th, May, 2012 + CRL.M.C. 646/2012 P.K.BAJAJ & ANR. ……..Petitioners Through: Mr.Mohit Taneja, Advocate. Versus STATE (NCT of Delhi) & ANR. ………..Respondents Through: Mr.Navin Sharma, APP for State – R-1. Mr.Arun Vohra, Adv. for R-2. AND + CRL.M.C. 647/2012 P.K.BAJAJ & ANR. ……..Petitioners Through: Mr.Mohit Taneja, Advocate. Versus STATE (NCT of Delhi) & ANR. ………..Respondents Through: Mr.Navin Sharma, APP for State – R-1. Mr.Arun Vohra, Adv. for R-2. CORAM: HON'BLE MS. JUSTICE PRATIBHA RANI % 1. Vide this common order, Crl.M.C. No.646/2012 and 647/2012 are being disposed of as identical pleas have been raised in both the petitions in respect of different dishonoured cheques i.e. cheques No.356793 & 356794 (subject matter of Crl.M.C. No.646/2012) and cheque No.356795 (subject matter of Crl.M.C. No.647/2012). 2. The present petitions under Section 482 CrPC have been filed impugning the order of learned Addl. Sessions Judge in Criminal Revision No.37/2011 and 38/2011 vide which prayer of petitioners to quash the complaint and summoning order was declined. 3. Vide impugned order, learned Addl. Session Judge dealt with all the contentions raised in the revision petition challenging the summoning order and after rejecting the same, it was further held that some of the contentions like complainant is a professional money lender or the transaction is barred under Punjab Money Lender Act were subject matter of trial. 4. Learned counsel for the petitioner assailed the summoning orders by raising similar pleas that summoning orders are bad in law and the material filed by the complainant did not make out any case against them. 5. The complaint case No.356/2011 has been filed by Satish Miglani against the petitioners herein in respect of dishonoured cheques No. 356793 & 356794 and the complaint case No.357/2011 has been filed by Neelam Miglani, wife of Satish Miglani against the petitioners herein in respect of dishonoured cheque No. 356795. The facts of both the complaints cases have already been given in detail in the impugned orders and the same are not being reproduced while disposing of these petitions. 6. In the brief synopsis filed on behalf of the petitioners, the contentions raised, which are almost similar in both the petitions, are :- (i) cheque return memo had been tampered with as bank memo dated 18.08.2011 not on record and only cheque return memo dated 13.08.2011 filed; (ii) complaint did not prove the case during pre- summoning evidence and just exhibited the documents; (iii) no notice was sent to M/s Bajaj Studio though the cheque was issued from its account; (iv) petitioner no.1 is a proprietorship concern, still respondent no.2 was summoned without any basis; (v) merely being authorized signatory does not make person liable except in the case of companies; (vi) the complainant being professional money lender, the transaction is barred under Punjab Money Lenders Act; (vii) service of notice not proved; (viii) payment of money by the complainant to the petitioners not proved; (ix) cheques in question were undated cheques given as security. 7. I have considered the grounds on which impugned orders have been sought to be quashed. Prima facie there existed a presumption of cheques having been given towards discharge of loan liability. Of course, the presumption is rebuttable and the onus lies on the petitioners to rebut the same. That can be done only during course of trial. The pleas taken by the petitioners in these petitions can only be raised and proved before Trial Court. 8. This court cannot examine the documentary and oral evidence which the petitioners have to lead before Trial Court. The disputed facts cannot be resolved in these proceedings. 9. The Supreme Court in State of Madhya Pradesh vs. Awadh Kishore Gupta & Ors. 2004 (1) SCC 691 while exercising jurisdiction under Section 482 CrPC, held that it is not permissible for the