Dismissed

Bharat Heavy Plate and Vessels and Anr. v. Ajay Kapoor

J&K HC1 Dec 2021CRMC/313/2012

Case brief

AI extract

What is this about?

The High Court restrained itself from quashing Section 138 NI Act proceedings as factual disputes regarding coercion and liability must be adjudicated by the trial court after evidence is led, dismissing the petition for quashing.

What did the court decide?

Petition for quashing the proceedings under Section 138 of the Negotiable Instruments Act was dismissed.

Bharat Heavy Plate and Vessels and Anr. Vs Ajay Kapoor — Cheque Dishonour | J&K HC (2021)

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Sr. No.42

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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Pronounced on: 01.12.2021

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CRMC No.313/2012 IA No.369/2012

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Bharat Heavy Plate and Vessels Ltd. and another

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….. Petitioner(s)

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Through: Mr. P. N. Raina, Sr. Advocate with Mr. J. A. Hamal, Advocate.

Ajay Kapoor

.…. Respondent(s)

Through: Mr. Ravi Dogra, Advocate.

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Coram: HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE

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JUDGMENT

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The petitioners have filed the present petition under Section 561-A Cr.P.C for quashing the proceedings pending before the court of learned Judicial Magistrate, First Class, City Judge, Jammu as by virtue of order dated 12.03.2001, the Magistrate has issued process against the petitioners while taking cognizance of the complaint under Section 138 of the Negotiable Instruments Act (hereinafter called „the Act‟).

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The complaint filed by the respondent herein against the petitioners pertains to alleged issuance of cheque in favour of the respondent to the tune of Rs.30 lacs purportedly as discharge of the liability of the petitioners towards the respondent-complainant for executing the work to the full satisfaction of the petitioners-accused. As the cheque was not encashed when presented to the concerned Bank and the cheque amount

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was not paid despite notice from the respondent within the statutory period, the complaint came to be filed by the respondent under Section 138 of the Negotiable Instruments Act against the petitioners. The cheque is stated to have been issued by the respondent No.2 on behalf of the company-respondent No.1.

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The complaint filed and the subsequent proceedings initiated through impugned order against the petitioners stand challenged by the petitioners on the ground that the cheque in question was made to be signed by the respondent through coercion and that the respondent had himself admitted through letter dated 27.11.2000 of the final bill of Rs.1,48,192.92 prior to the filing of the complaint. This letter indicated that no liability of the petitioners remained towards the respondent after the final bill. The complaint was outcome of the cancellation of work which was allotted to the respondent by the company. It is further submitted that the allegations made in the complaint are absurd and inherently improbable. The work was being executed on behalf of Government of India and no such transaction could be done by the petitioners as projected by way of raising of claim through cheque purportedly issued by the petitioners in favour of the respondent.

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Learned counsel for the petitioners has relied upon the judgments reported in (2007) 12 SCC 1 case titled Inder Mohan Goswami & another Vs. State of Uttaranchal & others ; and (2013) 3 SCC 330 case titled Rajiv Thapar & others Vs. Madan Lal Kapoor . In both the cases, the Hon‟ble Apex Court quashed the criminal proceedings keeping

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in view the peculiar facts of both the cases. In the authority of 2013 (supra), the court also held that “the High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations leveled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defenses raised on behalf of the accused is. Even if the accused is

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successful in showing some suspicion or doubt, in the allegations leveled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations leveled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defenses by producing evidence in accordance with law.”

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In 1992 Supp (1) SCC 335 case titled State of Haryana and others v.

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Ch. Bhajan Lal and others , the Hon‟ble Apex Court has laid down some guidelines where the High Court can exercise inherent powers under Section 482 of the Code. There cannot be any dispute to what has been enunciated by the Apex Court in this celebrated judgment. The learned counsel for the petitioners has also taken the court through other documents to support the argument that the complaint filed by the

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respondent is only abuse of the process of law.

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Mr. Ravi Dogra, learned counsel for the respondent, has argued that the arguments raised on behalf of the petitioners by referring to the documents annexed with the petition do not call for quashing the complaint on that score. The purport of letters referred to by the petitioners is a matter of trial and the factual aspects of the case cannot be given finality in the present proceedings as this court while exercising the inherent powers cannot fathom the facts and critically analyze the same.

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The learned counsel for the petitioners has relied upon the letter purportedly written by the respondent to the Site Incharge BHPV Limited IOCL Loni Site in order to bring home his argument that as the cheque in question is purportedly issued by the petitioner-Company in favour of the respondent after the final bill of Rs.1,48,192.92 had been raised by the respondent himself shows that the cheque in question was infact got forcibly issued from the petitioners.

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The letter dated 27.11.2000 referred to by the petitioners, in view of the court, does not advance the argument of the learned counsel for the petitioners. It may be mentioned that this letter notes that the bill is apart from the revised claim which the author of the letter is to submit shortly. The contents of the letter are to be read in the light of the other facts which may come on record during trial if the petitioners intend to rely upon the said letter. The court is not to give its opinion on the letter dated 27.11.2000 in the present petition.

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CRMC No. 313/2012

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Similarly, the reliance is also placed upon money receipt which appears to be issued on 30.11.2000 by one Bodh Raj acknowledging the amount of Rs.1,25,000/- towards the payment (additional payment) first and final bill for Loni work vide DD No. 416028 at 30.11.2000. It is to be noted that the cheque in question is of 21.09.2000 whereas the letter relied upon by the petitioners is of 30.11.2000 meaning thereby that the petitioners rely upon that document which came into being only after the issuance of the cheque. The context of the letter dated 30.11.2000 is again the factor which this court cannot thrash qua the complaint filed by the respondent or can be the reason to dismiss the complaint at threshold.

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As far as the argument raised on behalf of the petitioners that the complaint does not make out that the cheque in question was issued by the petitioners in discharge of their liability and therefore the complaint is not maintainable, is again the ground which has no force. Para 3 of the complaint itself reveals that the cheque was issued in favour of the complainant-respondent in discharge of the liability as the complainant had executed the work to the full satisfaction of the accused. The complaint need not provide the detailed nature of transaction out of which the liability of the accused has purportedly arisen. The respondent herein can bring on record during the trial the exact nature of liability in pursuance to which the cheque was issued by the petitioners herein. Of course, the author of the cheque can take all the defense that may be available to him during the course of trial. There is a presumption under law that the cheque issued is in discharge of some legal liability though

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the presumption can be rebutted by the accused during the course of trial.

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The Apex Court in Rajeshbhai Muljibhai Patel and others etc. Vs. State of Gujarat and another etc ., (Criminal Appeal Nos. 251-252 of 2020 decided on 10.02.2020) has held that “when disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C”.

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The other argument on behalf of the petitioners that the cheques in question had been forcibly got signed by the respondent after the respondent along with other persons entered the drawing room of the guest house of the company on 21.09.2000 is again such an argument which cannot be decided by this court in the petition filed under Section 561-A Cr.P.C. This court cannot be called upon to give the verdict which requires full trial and this argument can be pursued by the petitioners before the trial court in case they intend to rely upon the same as defense.

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Last but not the least, the argument raised on behalf of the petitioners that the order dated 12.03.2001 whereby the trial court has issued notice to the petitioners is without application of mind, is again without substance. The court has taken cognizance of the matter after going through the complaint and the statement recorded in support of the same. No illegality is found in the order impugned in the present petition.

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The Court, in the present case, is called upon to give verdict upon factual aspects of the matter which are required to be decided in trial Court. The

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truth can be unfolded after the evidence is lead in the matter. The proceedings cannot be allowed to be truncated and curtain brought down on the same only for the reason that the petitioners may have some defense which requires consideration in the trial.

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The argument is also raised that the respondent herein has not controverted the stand taken by the petitioners herein qua the application filed for dropping of proceedings before the trial court and therefore, the complaint is without basis. The objections to the application filed by the respondent/complainant reveal that the respondent has filed detailed reply and has prima facie controverted the stand of the petitioners herein. This Court in the present petition is not to fathom the nature of reply filed by the respondent and cull out the unrebutted allegations, if any, with microscopic analysis. The Court finds no reason either to interfere in the order dated 19.05.2012, passed by the trial court, whereby the application filed for dropping of proceedings & exemption to the applicants therein, was dismissed.

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In the light of the above, the court does not find merit in the petition which is, accordingly, dismissed .

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(Puneet Gupta) Judge

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Jammu : 01.12.2021 Pawan Chopra

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Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

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NARINDER KUMAR SHARMA 2021.12.01 12:08 I attest to the accuracy and integrity of this document

Bharat Heavy Plate and Vessels and Anr. v. Ajay Kapoor

Case brief

What is this about?

What did the court decide?

Bharat Heavy Plate and Vessels and Anr. v. Ajay Kapoor

Case brief

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What did the court decide?

What the court decided

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