Back
IN THE HIGH COURT OF DELHI
Chander Shekhar, J.
Shashi Adlakha - Appellant
Vs.
Housing Development Finance Corporation Ltd. - Respondent
Crl. M.C. 6466/2018 and Crl. M.C. 6519/2018
Decided On: 08-02-2019
NI Act - Quashing of Criminal Proceedings - Section 138 of NI Act - Cr.P.C. - [Housing Development Finance Corporation Ltd. v. Ms. Shashi Adlakha] - [Section 138 of NI Act, Section 482 of Cr.P.C.] - The court discussed the provisions of Section 138 of the NI Act and the relevant sections of the Cr.P.C. The judgment highlighted the technical nature of the offence under Section 138 of the NI Act, the inbuilt defences available to the accused, and the burden of proof on the accused. It emphasized the summary trial provisions and the procedure for entering a plea of defence and recalling witnesses. The court also cited the Supreme Court's position on the jurisdiction of the High Court under Section 482 of the Cr.P.C. and the need for caution in exercising this jurisdiction.
Fact of the Case:
The petitioner, a borrower, issued cheques for part payment of outstanding dues to the respondent-Company. The cheques were dishonoured, leading to criminal proceedings under Section 138 of the NI Act. The petitioner sought quashing of the proceedings, claiming to have already paid the amount and alleging lack of relevant documents by the respondent.
Finding of the Court:
The Court held that the defence raised by the petitioner required oral and documentary evidence, which could not be evaluated in the proceedings under Section 482 of Cr.P.C. It dismissed the petitions, emphasizing that the Trial Court should consider and deal with the petitioner's contentions and defence in accordance with the law.
Issues: The issues involved the quashing of criminal proceedings under Section 138 of the NI Act, the technical nature of the offence, the inbuilt defences available to the accused, and the jurisdiction of the High Court under Section 482 of the Cr.P.C.
Ratio Decidendi: The judgment emphasized the technical nature of the offence under Section 138 of the NI Act, the inbuilt defences available to the accused, the burden of proof on the accused, the summary trial provisions, and the need for caution in exercising the jurisdiction of the High Court under Section 482 of the Cr.P.C.
Final Decision: The petitions were dismissed, and the Trial Court was directed to consider and deal with the petitioner's contentions and defence in accordance with the law.
Chander Shekhar, J.
CRL. M.A. 50293/2018 (exemption) in CRL.M.C. 6519/2018
1. Exemption allowed, subject to all just exceptions.
2. The application is disposed of.
CRL.M.C. 6466/2018 & CRL.M.A. 50073/2018 (for stay)
CRL.M.C. 6519/2018 & CRL.M.A. 50292/2018 (for stay)
3. The petitioner has filed the present petitions under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C. in short) for quashing of criminal proceedings in Criminal Case Nos. 59787/2016 and 59793/2016, both under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act', in short) titled "Housing Development Finance Corporation Ltd. v. Ms. Shashi Adlakha" pending before the Metropolitan Magistrate (NI Act), Patiala House Courts, New Delhi.
4. The brief facts, which emerge from the material on record, are that the respondent-Company (complainant before the Trial Court) is engaged in the business of advancing loans under various schemes for residential accommodation to individuals and groups/societies after entering into a written agreement/contract with the borrower. The petitioner herein, is a borrower who entered into a loan agreement with the respondent-Company.
5. The respondent-Company had disbursed two loans of Rs. 3,13,66,000/- and Rs. 86,34,000/- vide Loan Account Nos. 607962423 and 6075207703 respectively to the petitioner vide a written agreement dated 01.03.2013.
6. The petitioner had agreed to repay the said loan amount advanced by the respondent-Company with interest in Equated Monthly Installments (EMI). The petitioner for the part payment of the outstanding dues in respect of the two loans had issued four cheques in total, i.e. three cheques Nos. 327979, 327980 and 327981 dated 31.01.2016 and another cheque No. 683005 dated 31.03.2016 for an amount of Rs. 11,84,385/-, Rs. 7,89,590/-, 2,02,000/- and Rs. 6,00,000/- respectively, from the account of M/s. Gold Field Shiksha Sanstha. On presentation of the said cheques, the same were dishonoured and returned to the respondent-Company with the endorsement "Refer to Drawer" on 04.04.2016.
7. Thereafter, the respondent-Company issued legal notices dated 28.04.2016 to the petitioner and the same were received by the petitioner on 03.05.2016. Despite receiving the said notices, the petitioner did not make the requisite payment within the stipulated period of 15 days. Hence, the respondent-Company filed the complaints under Section 138 of the NI Act.
8. Learned counsel for the petitioner submitted that the petitioner has already paid the entire amount which fact has not been disclosed by the respondent. It is further submitted by the learned counsel that even otherwise, the respondent has not filed the relevant documents which convinced the Trial Court to pass the summoning order, and the respondent could have initiated proceedings under Section 138 of the NI Act only in case the respondent was not able to recover the loan amount from auctioning of the property under security.
9. Learned counsel for the petitioner, on a query put by the Court, submitted that he has not challenged any specific order of the Trial Court but has sought quashing of the criminal proceedings against the petitioner arising out of Criminal Case Nos. 59787/2016 and 59793/2016 on the grounds mentioned in the petitions.
10. The list of dates and synopsis placed on record demonstrate that the notice under Section 251 of Cr.P.C. has been framed against the petitioner and she pleaded not guilty and claimed trial and also moved an application under Section 145 (2) of the NI Act which was allowed by the Trial Court. Thereafter, the Authorized Representative of the complainant-Company (respondent herein) was cross-examined by the learned counsel for the petitioner and was discharged.
11. Coming to the legal position and taking into consideration the various provisions of Cr.P.C. which have been discussed in various judgments time and again demonstrate that the Negotiable Instruments Act, provides sufficient opportunity to a person who issues t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
