IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR C.G. Cr. M. P. No.'?3 9/2010. T 1. Satpal Shanna, aged about 47 years S/o Dulichand Sharma. PETITIONERS/ Accused Persons: ^•¥;'. ^•:'sy ^"^^ ^ VERSUS RESPONDETS/ Comolainants: 2. Smt. Sushila Sharma, aged about 40 years, W/o Shri Satpal Sharma. [Both R/o Plot No.419, Parivahan Nagar, Korba, TahsU and Distt. Korba, C.G.]. 1. Pravin Prasad Sinha, aged about 44 years, S/o Shri O. K. Sinha. 2. Smt. Neelee Sinha, aged about 39 years, W/o F'ravin Prasad Sinha. [Both R/o House No. 126/3 Sector 01, Balco Nagar, P.S. Balco Nagar, TahsU & District: Korba, Chhattisgarh.]. APPLICATION UNDER SECTION 482'OF THE CODE OF CRIMINAL PROCEDURE CODE FQR QUASHINtSTHE PROCEEDINGS OF THE CRIMINAL COMPIXTNT CASE No. 442/ 2007 PENDING BEFORE THE COURT OF CHIEF'JUDICIAL MAGISTRATE, KORBA. l"' The petitioners/ accused persons named above most respectfully do hereby prefer this petition as under:- HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA^J. Cr.M.P. No.339/2010 PETITIONERS Satpal Sharma & another Versus RESPONDENTS Pravin Prasad Sinha & another Petition under Section 482 of the Cr.P.C. Appearance: Shri M.K. Baeg, counsel for the petitioners. Shri Dharmesh Shrivastava, eounsel for the respondents. ORAL-ORDER (Passedon 20.7.2011) Heard. 1. This petition has been filed by the petitioners aggrieved by order dated 22nd February, 2010 passed in revision, by which - petitioners' revision has been dismissed afiirming order dated 8.9.2009 passed by the Magistrate, registering offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act of 1881"}. 2. Assailing the correctness and validity of the order dated 22nd February, 2010 and proceedings of registration of offence, leamed counsel for the petitioners submits that the complaint is vague and contains incorrect details on factual allegation and on the /* -2- basis ofthat complaint, the petitioners could not be prosecuted. It is submitted that a false statement has been made in the complauit that the cheque was issued in favour of respondent No.l by petitioner No.l, whereas petitioner No.l never issued any cheque in favour of respondent No.l. It is further subraitted that petitioner No.l does not hold any account as stated in the complaint and therefore, the very basis of the entire complaint is highly doubtful and it is a case of false implication. It is contended that the information which has been collected by the petitioners from the Bank shows that the Bank informed respondent Nol only on 1st August, 2006 regarding dishonoi-ir of cheque and without giving proper notice after receipt of such information from the Bank, two days thereafter, complaint has been filed without complying the provision contained in clause (c) ofthe proviso to Section 138 ofthe Act of 1881. 3. Though no specific ground has been taken in the petition before this Court or before the Court below, for the first time, leamed counsel for the petitioners has also assailed the institution of proceedings against petitioner No.2 on the submission that the complaint itself alleged that cheque was issued by petitioner No. 1 and there is no allegation that petitioner No.2, at any point of time issued any cheque in favour of the coraplainant, which was presented in the Bank and was dishonoured. He submits that in view of the statutory scheme of Section 138 of the Act of 1881, the criminal UabUity could be fastened only upon petitioner No.l, who is alleged to have issued cheque and not on any other person. -3- 4. On the other hand, leamed counsel for respondents submitted that in the compliant, it has been specifically alleged that a cheque of Rs.3,50,000/- was issued by petitioner No.l in discharge of his liabiUly in the matter of sale and purchase of vehicle and later on, the said cheque was deposited in the Bank on 3.7.2006 and was dishonoured on 4.7.2006, on the ground of insufficient funds. Thereafter, a notice by registered post was sent on 15.7.2006 to the accused persons and fuially, when the amount was not paid in 15 days, a complaint has been filed on 3.8.2006. He further submits that the submissions which are being raised by the petitioners are only matters of defence, which may be raised durmg the trial, but, on the basis of the complaint, the Court below was justified in registering the offence against the petitloners. 5. As far as submission that the petitioner No.l does not hold any account in the concerned Bank nor the petitioner had issued any cheque is concemed, it may be a matter of defence for the petitioner. However, in the complaint, it has been very specifically stated by the complainant that petitioner No.l had issued a cheque of I.C.I.C.I. Bank bearing No. "504130" on 15.2.2006. Therefore, it is the matter of inquiry in the appropriate judicial proceedings after recording evidence with regard to assertions which are being made by the petitioners. 6. The other submission of leamed counsel for the petitioners that dishonour of the cheque was informed by the Bank only on -4- 1.8.2006 and fhereafter, no legal notice was given by the complainant to the petitioners is concerned, that is also a matter of defence, because in the complaint, it has been stated by the complainant that the cheque was dishonoured on 4.7.2006. The date on which the information was given by the Bank to the complainant and its impact thereupon will depend upon the evidence, which is yet to be coUected by the Court in the proceedings. However, the contents of complaintshow that legal notice was issued by the complainant on 15.7.2006 and it has been averred that the same has been received, but, no payments were m.ade. Therefore, it cannot be said that the coraplaint does constitute essential ingredients for commission of offence under Section 138 of the Act of 1881. Whether the allegations are correct or not is a matter of inquiry and at this stage, this Court is not inclined to accept the assertions which are inore in the nature of a defence, which may be led by the petitioners at the appropriate stage of criminal proceedings. However, there is one aspect of the matter which warrants interference of the Court, in so far as registration of offence and initiation of proceedings against petitioner No.2 is concerned. In the complaint what has been alleged by the complainant is that a cheque of Rs.3,50,000/- was issued by accused No.l/petitioner No.l herein. It is stated that the aforesaid cheque was presented and dishonoured, for which, notices were given. Therefore, from the reading of complaint, it is borne-out that the allegation of issuance of cheque is only against petitioner No.l. Though it is stated that in the transaction, petitioner No.l and 2 both were involved, there is -5- ^ no iota of allegation in the complaint that petitioner No.2 issued any cheque, much less the cheque in question. This Court, in the case of Mohd. Sami Ansasri Vs. State of C.G. & Ors. (Cr.M.P. No.69/2010), decided on 18th July, 2011, has held that under the statutory scheme of Section 138 of the Act of 1881, the person, who has issued the cheque, which has been subsequently dishonoured, alone, is criminally Uable for prosecution and no other person can be prosecuted on the aUegation of commission of offence under Section 138 of the Act of 1881, in the absence of there being any allegation that he had issued the cheque. Therefore, as far as the registration of offence and initiation of criminal proceedings against petitioner No.2 is concemed, they are apparently abuse of the process of law and cannot be sustained. True it is that this ground has not been specificaUy raised by the petitioners either in this petition or before the Courts below, but fhen the power under Section 482 of Cr.P.C. clearly provides that this Court has inherent powers to pass appropriate orders to prevent abuse of the process of any Court or otherwise to secure the ends ofjustice. The apparent reading of the complaint and the statutory scheme of Section 138 of the Act of 1881 does not cdlow prosecution of petitioner No.2. Therefore, even though such a ground has not been specifically raised in the petition or before the Courts below, this Court is not inclined to reject such a contention on such technical ground. In order to advance the cause of justice, the interference of this Court has becorae necessary in so far as petitioner No.2 is concemed. -6- 7. Accordingly, in so far as registration of offence against petitioner No.2 is concerned, fhe same is declared iUegal and quashed. Consequently, the criminal proceedings against petitioner No.2 also stands quashed. 8. The petition is accordingly partly allowed. tAan1 sdf;s^asta"a ^•"•^5*""" Praveen k