2022 (11) TMI 683 - HC - Indian Laws

Court dismisses revisional application to quash criminal proceedings, finding cognizable offense. Power of attorney holder can file.

The court dismissed the revisional application seeking to quash criminal proceedings under various sections of the IPC, finding that the complaint ... Dishonor of Cheque - FIR against the misuse of blank cheques against the MD of the Finance Company - legally enforceable debt or not - specific role has been ascribed to the petitioner attaching vicarious liability on his part or not - proceeding under Section 138 and 141 of the Negotiable Instruments Act, 1881 - HELD THAT:- On going through the averments made in the petition under Section 156(3) of the Code it is found that the complainant along with her husband availed loan facilities in the name of partnership firm namely Shree Techno Services. However upon death of the husband of the complainant on 30.07.2019 the aforesaid firm and its current account in Axis Bank were closed. Admittedly, at the time of availing credit facilities the original deeds of property within mouza-Thiknikata, Matigara, District-Darjeeling as well as seven numbers of blank cheques were delivered to the HDB Financial Services Limited of which the petitioner is the Managing Director & Chief Executive Officer. The HDB Financial Services Limited on 03.09.2020 contending of non-payment of outstanding loan amount issued notice under Sections 13(2) read with Section 13(13) of the SARFAESI Act demanding a sum of Rs. 34,86,706/-. In reply dated 21.10.2020 to the aforesaid notice the complainant, in addition to other relevant facts, informed the death of one of the partners who was also one of the drawer of the cheque namely Indrajit Mukherjee, to HDB Financial Services Limited. In the case at hand it is found that the complaint disclose a cognizable offence and therefore bearing in mind the aforesaid observation of the Hon’ble Court in order to unearth the veracity of the allegation made in the complaint thorough investigation is required and as such there cannot be any justification to stop the investigation at a nascent stage. Accordingly, the argument advanced on behalf of the petitioner falls short of merit. Undisputedly seven numbers of blank cheques were handed over to the Finance company at the time of disbursement of loan. It is also found that the cheque in question was placed for encashment after the demise of one of the drawer of the cheque and an inflated value has been incorporated in the cheque which is at variance to the amount demanded by way of notice under the SARFAESI Act. In view of the distinctive facts involved in the present case, whether there was any act of forgery on the part of the petitioner being the Managing Director & Chief Executive Officer requires to be thoroughly investigated by the investigating agency. Although Section 139 of the Act provides a statutory presumption that on issuance of a cheque there is presumption that it is issued in discharge of existing debt or liability yet one cannot be oblivious to the peculiar facts noted above with regard to the cheque in question. It is settled principle of law that at the stage of quashing FIR or complaint it is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein unless they are so absurd and inherently improbable that no prudent man can ever reach to just conclusion - It is placed on record that there is neither any absurd or inherent improbability noted in the facts of the present case nor the facts alleged in the complaint on its face value fails to disclose an offence. As it is already found that there are primary materials to proceed, hence invoking inherent power will lead to stifling of a legitimate litigation. Revision dismissed. Issues Involved:1. Quashing of the criminal proceeding under Sections 384/403/409/420/468/471/506/120B of the Indian Penal Code.2. Maintainability of the application for quashing under Section 482 of the Code of Criminal Procedure by a power of attorney holder.3. Requirement of preliminary inquiry before the registration of FIR in commercial offences.4. Allegation of forgery and fraudulent use of a blank cheque.5. Validity of the demand raised under the SARFAESI Act and Negotiable Instruments Act.6. Abuse of process of court and ulterior motive behind initiating the criminal proceeding.Detailed Analysis:1. Quashing of the Criminal Proceeding:The petitioner sought to quash the proceeding in G.R. Case No. 431 of 2021 under various sections of the IPC, alleging that the complainant's firm had availed loans which were secured by mortgaging property and delivering blank cheques. The petitioner argued that the complainant initiated the proceeding with an ulterior motive to pre-empt a criminal complaint under Section 138 of the Negotiable Instruments Act. The court found that the complaint disclosed a cognizable offence, warranting thorough investigation to ascertain the complicity of the accused.2. Maintainability of the Application for Quashing:The court addressed the issue of whether an application for quashing under Section 482 of the Code is maintainable when filed by a power of attorney holder. It held that as per the Appellate Side Rules of the Calcutta High Court, an application signed by the petitioner or his authorized agent is maintainable. The court found no merit in the contention that the application was not maintainable.3. Requirement of Preliminary Inquiry:The petitioner argued that a preliminary inquiry should have been conducted before registering the FIR, citing the Supreme Court's decision in Lalita Kumari. The court clarified that if the information discloses a cognizable offence, the registration of FIR is mandatory without a preliminary inquiry. As the complaint disclosed a cognizable offence, the court held that no preliminary inquiry was necessary.4. Allegation of Forgery and Fraudulent Use of a Blank Cheque:The complainant alleged that the Finance Company used a blank cheque, delivered at the time of loan disbursement, by forging details and presenting it for an inflated amount after the death of one of the partners. The court noted that the cheque was presented despite the knowledge of the partner's death and the closure of the firm's account, indicating a prima facie case of forgery and fraudulent demand.5. Validity of the Demand Raised:The court observed that the demand under the SARFAESI Act was Rs. 34,86,706/-, whereas the demand under the Negotiable Instruments Act was Rs. 50,77,261/-, showing a discrepancy. It also noted that the loans were insured, and claims were settled by the insurance company, yet the Finance Company demanded payment from the complainant, raising questions about the legitimacy of the demands.6. Abuse of Process of Court:The petitioner contended that the criminal proceeding was initiated to wreak vengeance and pre-empt the filing of a complaint under Section 138 of the Negotiable Instruments Act. The court found that the allegations disclosed a cognizable offence and warranted investigation, rejecting the argument that the proceeding was an abuse of the process of the court.Conclusion:The court dismissed the revisional application, holding that the complaint disclosed a cognizable offence and warranted thorough investigation. It clarified that the observations made would not affect the rights and contentions of the petitioner before the trial court. All connected applications were disposed of, and interim orders, if any, were vacated. The judgment was to be sent to the trial court for information.