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2009(5) Supreme 320
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
D.K. Jain and R.M. Lodha, JJ.
Jugesh Sehgal — Appellant
versus
Shamsher Singh Gogi — Respondent
Criminal Appeal No. 1180 of 2009
Arising out of Special Leave Petition (Criminal) No. 369 of 2006
Decided on : 10-07-2009
(b) Code of Criminal Procedure, 1973 – Section 482 – The power should be exercised only where the court is convinced that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed – It should be exercised in rarest of rare cases. (Para 13)
(1992) 4 SCC 305; (1977) 4 SCC 451; 1992 Supp (1) SCC 335; (2008) 3 SCC 574 – Relied upon.
Facts of the case :
1. The complainant is engaged in the trading of petroleum products. According to him, the appellant, his father, brother and mother used to purchase mobile oil from him from time to time.
2. On 20th November, 2000, all four of them got issued a cheque bearing No. 227739 drawn on Indian Bank, Sonepat in the sum of Rs.24,92,115/- in discharge of their liability towards him. The complainant presented the cheque for payment to his bankers, which was returned unpaid on 29th December, 2000 with the remarks “Account closed”.
3. On 17th January, 2001, the complainant got a legal notice issued to all the four accused asking them to pay the cheque amount.
4. The accused denied having any business dealings with the complainant as also the issue of cheque in question by any one of them. Their stand was that no such cheque was ever signed, issued or got issued by them at any point of time in favour of the complainant.
5. The Chief Judicial Magistrate, Panipat took cognizance of the complaint and vide order dated 20th September, 2003, directed issue of notice to all the accused.
6. All the four accused filed petition under Section 482 of the Code praying for quashing of the complaint.
7. The High Court has dismissed the petition qua accused No.1, the appellant herein, on the ground that the plea of the appellant that the cheque was not issued by him involved a disputed question of fact which could not be gone into by the Court in proceedings under Section 482 of the Code. As regards the rest of three accused petitioners, the learned Judge allowed the petition holding that neither the cheque had been issued by them nor they had been shown to be vicariously liable under Section 141 of the Act.
Finding of the Court :
Impugned judgment cannot be sustained.
Result : Appeal allowed.
Key Points: - (!) (!) (!) Section 138 requires six specific ingredients to be proven for conviction; all ingredients must be satisfied cumulatively. - (!) The appellant’s cheque was drawn on an account not maintained by him, raising a challenge to the first ingredient and rendering the offence not proved. - (!) - (!) The High Court’s power under Section 482 Cr.P.C. should be exercised sparingly, in rarest of rare cases, to prevent abuse of process or to serve the ends of justice, and quashing was warranted here. - (!) - (!) The Supreme Court allowed the appeal and quashed the criminal complaint against the appellant. - (!) - (!) The complaint and sequence of notices/defences show the contested issue regarding the issuer’s account and its sufficiency to sustain Section 138 liability. - (!) - (!) The statutory text defines the offence and its operative conditions, including the timeframes for presentation, notice, and payment. - (!) - (!) Som Mittal and Bhajan Lal principles guide the interpretation of "rarest of rare cases" for exercising 482 Cr.P.C. powers. - (!) Result: appeal allowed; complaint quashed.
JUDGMENT
D.K. Jain, J.—
1. Leave granted.
2. This appeal arises from the judgment and order dated 13th December, 2005 rendered by a learned Single Judge of the High Court of Punjab & Haryana at Chandigarh in Criminal Miscellaneous No. 47932-M of 2004. By the impugned judgment, the learned Judge, while partly allowing the petition preferred under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Code”) seeking quashing of a private complaint filed by the respondent (hereinafter referred to as “the complainant”) under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) has dismissed the petition qua the appellant.
3. In order to appreciate the controversy, a few material facts may be stated thus:
The complainant is engaged in the trading of petroleum products. According to him, the appellant, his father, brother and mother used to purchase mobile oil from him from time to time. According to the complainant, on 20th November, 2000, all four of them got issued a cheque bearing No. 227739 drawn on Indian Bank, Sonepat in the sum of Rs.24,92,115/- in discharge of their liability towards him. The complainant presented the cheque for payment to his bankers, which was returned unpaid on 29th December, 2000 with the remarks “Account closed”. Thereafter, on 17th January, 2001, the complainant got a legal notice issued to all the four accused asking them to pay the cheque amount. In their reply to the legal notice, the accused denied having any business dealings with the complainant as also the issue of cheque in question by any one of them. Their stand was that no such cheque was ever signed, issued or got issued by them at any point of time in favour of the complainant.
4. Dissatisfied with the response to the legal notice, the complainant filed a complaint under Section 138 of the Act against the afore-noted four persons. Paragraph 3 of the complaint, which contains the gist of complainant’s case and has a bearing on the issue involved in this appeal, reads as follows:
“That the complainant handed over the cheque No. 227739, dt. 20.11.2000 of Indian Bank, Sonepat to its banker Oriental Bank of Commerce, Samalkha for the collection of the amount of aforesaid cheque after about one month as requested by the complainants. But the Indian Bank, Sonepat returned the said cheque with the remarks “Account closed” vide return memo dated 29.12.2000. The return memo dated 29.12.2000 alongwith original cheque was returned by the O.B.C., Samalkha alongwith its forwarding letter dt. 03.01.2001 to the complainant vide which the O.B.C., Samalkha also informed that a sum of Rs.3136/- has been debited in the complainant’s account as collection charges. After receiving the return memo alongwith forwarding 03.01.2001, the complainant came to know for the first time that the accused have issued the aforesaid cheque dt. 20.11.2000 with a fraudulent intention knowing fully well that the accused have no sufficient amount for the encashment of the aforesaid cheque or the said account was not in existence on that date or the said account pertained to someone else. The complainant has also came to know that all the above named accused being a family members, formed an unlawful group to play fraud with the public and there was several other instances.” (emphasis supplied)
5. The Chief Judicial Magistrate, Panipat took cognizance of the complaint and vide order dated 20th September, 2003, directed issue of notice to all the accused. All the accused put in appearance; notice of accusation was given; they pleaded not guilty and claimed trial. Thereafter, all the four accused filed petition under Section 482 of the Code praying for quashing of the complaint. As noted earlier, by a short order, the High Court has dismissed the petition qua accused No.1, the appellant herein, on the ground that the plea of the appellant that the cheque was not issued by him involved a disputed question of fact which could not be gone into b
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