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2022 (5) TMI 196
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....Cr.P.C is filed to quash the summoning order dated 9.6.2000 passed by the Chief Judicial Magistrate, in Criminal Case No.1609 of 2000 M/s R.P. Sales vs. A C E Prints and Packs Pvt. Ltd. 3. In brief the facts are that the opposite party no.2 filed a complaint under Section 138 N.I. Act and 420 I.P.C dated 6.4.2000 against the applicant and two others. It is alleged in the complaint that the (accused-opposite party no.2) issued a cheque for Rs.1,95,000/- in favour of complainant in discharge of his liability for payment of raw-material supplied by the complainant's firm to the opposite party's firm. It is further alleged that when the cheque was presented it was dis-honoured by the Bank on 22.2.2000 due to insufficiency of funds. The complai....
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....in this respect the allegations of the First Information Report does not stand corroborated. Learned counsel vehemently contended that a proceeding under Section 138 N.I. Act can be instituted only for dishonour of cheque due to insufficiency of funds. While in this case the cheque has not been dishonoured due to insufficiency of funds but due to reason that there was overwriting on its date and it was torn, so drawers' attestation is required. It has also been contended that the impugned cheque was not of a saving bank or a current account. It was of a cash credit account which has the facility to pay the cheque upto the sanctioned limit to the parties. It is also one of the grounds of application that no material was supplied by the comp....
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.... opposite party no.2 that the applicant intentionally given the cheque of a particular account in which he was not having money and procured the material from the opposite party no.2 dishonestly and thereafter with the connivance of Bank Manager has made over writing in the cheque in question. This fact is very much mentioned in the complaint by the opposite party no.2 and in the affidavit of opposite party no.2 under Section 200 Cr.P.C and in statement of P.W-1 Vijay Singh and P.W-2 Devendra Pratap under Section 202 of Cr.P.C. Therefore, the offence under Section 420 is also made out along with offence under Section 138 N.I. Act. It is also contended that one of the reason for dishonour of cheque is insufficiency of funds also which is ti....
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.... been raised by the learned counsel for the applicant regarding summoning of the accused-applicant for offence under Section 420 I.P.C. Hence the entire proceedings of complaint case cannot be quashed. 8. It is settled principle of that at this stage only primafacie case is to be seen as laid down by the Hon'ble Apex Court in the case of Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. 9. In case of 'State of Haryana and others Vs. Ch. Bhajan Lal and others', in Civil Appeal No.5412 of 1990, decided on 21.11.1990, the Hon'ble Apex Court in paragraph no.108 has laid down following norms for exercising powers under section 482 Cr.P.C.":- "108. In the backdrop of the interpreta....
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.... out a case against the accused. (iv). Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (v). Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (vi). Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedi....