TaxTMI 
TaxTMI 
2025 (1) TMI 334
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.... of the case are that the opposite party no.2 filed a complaint under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) on 03.08.2020 against the applicant stating therein that the opposite party no.2 is working as Assistant Teacher at Janta Vidya Mandir Inter College, Orai-Jalaun. The Manager of the aforesaid is Dilip Kumar Singh, who is real brother-in-law (Saadhu Bhai) of the applicant. Due to the good relations between the two, they used to have money transactions with each other. It has been further alleged that on 25th September, 2016, the applicant requested for 10 to 15 lakh rupees from opposite party no.2 as he wanted to purchase a plot at Allahabad. The applicant requested the opposite party no.2 to make arrangements for the money, for which he was ready to pay interest also. It has been further alleged that as relations between the two were good and they had maintained honest relationship of money transactions with each other, therefore, opposite party no.2 requested the applicant to come to his house to take the money on 02.10.2016, hence the applicant on the same date i.e. 02.10.2016, reached the residence of opposite party no.2 at about....
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....ons between opposite party no.2 and applicant were due to one Dilip Kumar Singh who happens to be brother-in-law of the applicant and was Manager of the Institution in which the opposite party no.2 was working as Assistant Teacher at the relevant point of time, whereas the real fact is that in the year 1997 Mr. Narendra Pal Singh was the Manager of the said Institution whereas at the time of filing the complaint Sri Dilip Kumar Singh was the Manager. (ii) The opposite party no.2 had approached the applicant to engage him as a counsel in Writ Petition No.4926 of 1997 (Alok Singh Niranjan vs. District Inspectors of Schools and Others) filed by opposite party no.2 before this Court. The aforesaid writ petition was disposed of vide order dated 29.11.2001 directing the respondents to pay the salary for the period the petitioner discharged his duty in the Institution. After the aforesaid order, the applicant and the opposite party no.2 were not in contact from 2002 till January, 2017. (iii) The opposite party no.2 again approached the applicant to file Writ No.11135 of 2018 (Alok Singh Niranjan vs. State of U.P. and Others) for regularization of his service. The same wa....
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.... and the money accordingly dispersed in his account. In so many words, the applicant had indicated the opposite party no.2 to present the cheque only when the loan is sanctioned and information regarding this was to be given by the applicant to opposite party no.2. The aforesaid was possible due to the client-lawyer trust relationship as built between the applicant and the opposite party no.2. Thus, the cheque was issued as an advance payment for purchase of Innova car. (vi) It was agreed between the parties that the possession of the Innova Crysta car will be given to the applicant only when full amount is received by the opposite party no.2. (vii) In this regard, a consent/agreement letter was prepared on 20.03.2020 which was signed by applicant as well as opposite party no.2 in the presence of Vinod Kumar Srivastava son of Sri Shivshankar Srivastava as well as Mr. Vimlendra Kumar son of Sri Chhabiram Pal resident of District Moradabad who was also a client of the applicant. (viii) The agreement between the applicant and the opposite party no.2 was a contingent contract under Section 31 of the Indian Contract Act, 1872 and as the condition of grant of c....
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....has stated that he arranged the cash of Rs.12,25,000/- within five working days creates suspicion and doubt as to how and from where such huge amount could be managed, thus falsifying the entire version of the complaint. (xv) In the complaint as well as the notice, it has been mentioned that the applicant and the opposite party no.2 had long history of money transactions. However, except the fees as paid by opposite party no.2 as client to his lawyer/applicant, there is no other transaction between the two. The fact of client-lawyer relationship has been deliberately concealed by the applicant hence the complaint has not been filed with clean intention. (xvi) Learned counsel for the applicant further submits that the story as narrated in the complaint also appears to be doubtful as at the time of demonetization, how could such a huge amount be arranged by the opposite party no.2 has also not been disclosed. The applicant does not have any plot nor is a property dealer, therefore, it cannot be said that any amount has been received by him from opposite party no.2 for purchasing a plot. (xvii) Learned counsel for the applicant further submits that as per th....
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....played on the part of the court concerned. 8. Learned counsel for the applicant submits that for purposes of Section 138 N.I. Act, the cheque should be issued for legally enforceable debt or other liability. Relying upon a judgment passed by Honble Apex Court in the case of Indus Airways Pvt. Ltd. and Others vs. Magnum Aviation Pvt. Ltd. and Another, reported in 2014 (12) SCC 539 the Court in paragraph no.9 has opined that the explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any re....
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....arned counsel for the applicant thus submits that in view of the aforementioned, it is necessary for the Magistrate to conduct an inquiry on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused in cases where the accused resides beyond the territorial jurisdiction of the Magistrate Court. 14. Learned counsel for the opposite party no.2 submits that the complaint as filed by the opposite party no.2 under Section 138 of N.I. Act fulfills the ingredients as required i.e. :- (i) drawing of cheque. (ii) presentation of cheque to the bank. (iii) return of cheque unpaid by the drawee bank. (iv) giving notice in writing to the drawer of the cheque demanding payment of a cheque (v) failure of the drawer to make payment within 15 days of receipt of notice. 15. Once cheque has been signed and issued in favour of the holder of the cheque then there is a statutory presumption under Section 139 of N.I Act that the cheque was issued in discharge of a legally enforceable debt or liability hence, there is sufficient material on record to show that the prosecution under Section 138 of N.I.....
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....e, hence, in view of the judgment passed by the Honble Apex Court in the case of K. Ramesh vs. K. Konthandaraman reported in (2024) SCC OnLine SC 531, even if a blank cheque leaf is voluntarily signed and handed over by the accused towards some payment, it would attract the presumption under Section 139 of N.I. Act and in the absence of any cogent evidence to show that the cheque was not issued in discharge of debt, the presumption would hold good. 20. Relying upon a judgment of Sunil Todi and Others vs. State of Gujarat & Another reported in (2022) 16 SCC 762, learned counsel for the opposite party no.2 submits that the evidence of complainant can be given by him on an affidavit. The Court has no reason for insisting on the evidence of witnesses to be taken on oath. Consequently in the aforesaid decision, it has been held that Section 202 (2) Cr.P.C. is inapplicable to complaints under Section 138 N.I. Act in respect of the examination of witnesses on oath. The Court further held that evidence of witnesses on behalf of complainant can be permitted on oath. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine the witnesses and in suitable cases....
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....nd at this juncture. (iv) The averment about using blank papers for purposes of agreement also cannot be taken as correct as signatures of witnesses are there on the same alleged blank paper, which cannot be possible in case it is believed that blank paper was used. (v) It is settled preposition of law that if a person admits his signature on some document then the onus shifts on the person who admits his signatures on a document to prove that it was obtained on blank papers or was taken under undue influence or under pressure. The aforesaid fact has been held in the case of Surjit Singh vs. Nanak Singh, RSA No.3124 of 2004 decided on 25.09.2008 by the High Court of Punjab and Haryana At Chandigarh. (vi) In the facts of the present case, the opposite party no.2 has for the first time spoken about signatures on blank papers being taken by the applicant hence, it was for him to mention the aforesaid fact in the complaint as filed by him that the signatures on such blank papers were taken under undue influence or under pressure. It is admitted position that the opposite party no.2 being client of the applicant had signed the papers not being under any undue ....
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....25,000/- has already been paid, therefore, as part payment was already made, the complaint under Section 138 N.I. Act could not have been entertained. 28. Be that as it may, once the complainant i.e. opposite party no.2 has not disclosed the lawyer and client relationship between him and the applicant and as for the first time admitted the aforesaid fact in his counter affidavit, the story in the complaint of giving advance in cash without disclosing as to how and from where such an arrangement was made also gives benefit to the applicant who under such relationship as admitted by the opposite party no.2 in his counter affidavit has mentioned about an agreement which cannot be disbelieved by this Court. 29. This Court finds that where payment was made by cheque in nature of advance payment, it indicates that at the time of withdrawal of cheque, there was no existing liability as such the complaint under Section 138 N.I. Act is not maintainable. 30. The aforesaid fact has been held in the case of Indus Airways Pvt. Ltd and Others vs. Magnum Aviation Pvt. Ltd and Another, reported in 2014 (12) SCC 539. The same was reiterated by the Hon'ble Apex Court in the case of Sampelly....
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.... concerned Magistrate exercises his jurisdiction, it is mandatory on the part of Magistrate to conduct an enquiry or investigation before issuing the process. That means, in case, if such an enquiry is not conducted in cases where the accused resides at a place beyond the area in which the Magistrate exercises his jurisdiction, the purpose of amendment in Section 202 Cr.P.C. would frustrate. 36. The essence of purpose of amendment has been captured by this Court in case of Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638: "11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process ''in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'' and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not. 12. The words ''and shall, in a case where the ac....
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....inal Procedure (Amendment) Act, 2005, with effect from 22-6-2006 by adding the words ?and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction?. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment." 38. Similar view has been taken in the Supreme Court judgement in the case of Sunil Todi vs. The State of Gujarat, (2022) 16 SCC 762 , wherein enquiry by the concerned Magistrate is mandatory, in case, where the accused is residing at a place beyond the area of its jurisdiction prior to issuance of process. 39. Thus, the impugned order of summoning the applicant without conducting mandatory inquiry under Section 202 (1) Cr.P.C. is liable to be quashed. 40. Coming to the merits of t....
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....rm which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, ''debt or other liability'' means a legally enforceable debt or other liability. 139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the hold....
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....t Section 138 while making dishonour of a cheque an offence punishable with imprisonment and fine also provides for safeguards to protect drawers of such instruments where dishonour may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period. 43. This Court having noticed the facts of the case and the evidence on the record needs to note the legal principles regarding nature of presumptions to be drawn under Section 139 of the Act and the manner in which it can be rebutted by an accused. Section 118 provides for presumptions as to negotiable instruments. The complainant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before this Court refers to various judgments of the Apex Court co....
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....ry note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a....
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....ved. In terms of the said provision, thus, the expression 'shall presume' cannot be held to be synonymous with 'conclusive proof'.'' 47. In view of the above, it is clear that the expression ''shall presume'' cannot be held to be synonymous with conclusive proof. Referring to definition of words ''proved'' and ''disproved'' under Section 3 of the Evidence Act, following was laid down by the Apex Court in paragraph No. 30 of the aforesaid judgment: ''30. Applying the said definitions of ''proved'' or ''disproved'' to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evide....
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....ument was executed and when the burden shall be shifted. In paragraph Nos. 18 to 20, following has been laid down : ''18. Applying the definition of the word ''proved'' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase ''until the contrar....
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....ability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. In Paragraph No. 13, following has been laid down : ''13. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 0886322 dated 8-2-2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable.'' 53. After referring to various other judgments of this Court, the Apex Court in the aforementioned case held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability, which, of course, is in the nature of a rebuttable presumption. In paragraph No. 26, following was laid down : ''26. In light of these extracts, we are in agreem....
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....nderance of probabilities''. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.'' 55. From the above discussion, it is clear that the opposite party no.2 has not been able to prove his case that the amount of Rs.11,00,000/- was not given as advance payment as agreed between the parties for the purpose of purchasing Innova car hence, the probable defence as raised by the applicant creates doubt about the existence of a legally enforceable debt of liability. 56. The present case appears to be a case of malicious prosecution wherein the opposite party no.2 has concealed the real fact of lawyer-client relationship and has wrongly disclosed about Dilip Kumar Singh who is related to the applicant being Manager of the Institution where opposite party no.2 was working at the relevant point of time to which the Court cann....
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....uted by one person against another, from wrongful or improper motive and without probable cause to sustain it." "A prosecution begun in malice, without probable cause to believe that it can succeed and which finally ends in failure." "A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause." "A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy." The term "malicious prosecution" imports a causeless as well as an ill-intended prosecution. 'MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy. In malicious prosecution there are two essential elements, namely, that no probable ca....
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....ing has been observed by the Apex Court in paragraph 6: ''Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561 -A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under Section 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ord....
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....es where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar, AIR 1928 Bom 184, Jagat Ohandra Mozumdar v. Queen Empress, ILR 26 Cal 786), Dr. Shanker Singh v. The State of Punjab, 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Ray v. Govind Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar, ILR 47 Mad 722: (AIR 1925 Mad 39).'' 62. In the case of State of Haryana and others v. Ch. Bhajan Lal and ot....
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....of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'' 63. In the case of State of Bihar and another v. P.P. Sharma and another (Supra), the following has been observed by the Apex Court in paragraph 22 : ''22. The question of mala fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for an unauthorised purpose. There is no material whatsoever is this case to show that on the date when the FIR was lodged by R.K. Singh he was activated by bias or had any reason to act maliciously. The dominant purpose of registering the case against the respondents was to have an investigation done into the allegations contained in the FIR and in the event of there being sufficient material in support of the allegations to present th....
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....e law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, ....
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....ised sparingly and that too in rarest of rare cases. ***** ***** ***** ***** ***** ***** As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H.S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be proper for the High Court to ....
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...., in the case of M.N. Ojha v. Alok Kumar Srivastava, reported in 2009 (9) SCC 682, has made observations in paragraphs 25, 26, 27, 28, 29 and 30 regarding the exercise of power under Section 482 Cr.P.C. as well as the principles governing the exercise of such jurisdiction : ''25. Had the learned SDJM applied his mind to the facts and circumstances and sequence of events and as well as the documents filed by the complainant himself alongwith the complaint, surely he would have dismissed the complaint. He would have realized that the complaint was only a counter blast to the FIR lodged by the Bank against the complainant and others with regard to same transaction. 26. This Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, (1998)5 SCC 749, held: ''28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind ....
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....r reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the Complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.'' (emphasis added) 66. After the aforesaid discussion, it is also relevant to point out the fact that scope and ambit of Section 482 Cr.P.C. is a very agitated and debatable issue. Nevertheless, there are some cases which have got wide acceptance in the legal fraternity and hence, are used as the minor guidelines/principles governing the cases of quashing criminal proceedings. 67. The Hon'ble Apex Court in the case of Prashant Bharti Vs. State of NCT of Delhi reported in (2013) 9 SCC 293 has held that, in order to determine the veracity of prayer for quashing the criminal proceedings raised by an accused u/s 482 Cr.P.C., the following questions are to be raised before the High Court, if the answer to all the following questions was in affirmative, then the High Court should quash the proceedings by exercising its power u/....
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....prevent an abuse of the process of any court; (v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; (vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; (vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing i....
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....h the trial Court. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegation are materialized in a charge sheet. On the contrary, it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of the power of any Court." 72. This Court time and again has examined the scope of jurisdiction of the High Court under Section 482 Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 Cr.P.C. A three-Judges Bench of this Court in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated : "7. ... In the exercise of this wholesome power, the High Court is entitle....
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....ffence or (c) a civil wrong as also a criminal offence. A commercial ......or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence." 75. As such, the High Court u/s 482 Cr.P.C. has very wide scope and is an essential part of the functioning in order to meet the end of justice, it must be noted that the power so assigned is so vast and can easily be misinterpreted. So, it becomes important for the Courts to use it wisely and according to the guidelines laid down by the Hon'ble Apex Court. 76. Section 482 of Cr.P.C. has made its space in Cr.P.C. in order to not only enable the High Court to provide proper justice but also to curb the filing of fictitious complaints. 77. In the present case as forwarded by/from both the sides, the Hon'ble Court may surely take judicial notice that contain facts as provided u/s 57 of the Evidence Act, 1872 and set the law in motion by delivering substantial justice and balance be struck between the statutory obligations of investigation and rights of affected parties. 78. Further, even the framers of legislation while enacting section 482 Cr.P.C. had star....
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....s narrated by the opposite party no.2 in the complaint is highly doubtful. 83. Final contentions as forwarded by the learned counsel for opposite party no.2 is that the material placed on record before the concerned Magistrate was sufficient to pass order of summoning the accused and that concerned court cannot discard the fact that the cheque has been issued by the applicant so the trial cannot be stalled by merely raising some suspicion or doubt in allegations against the applicant. 84. In this regard, it is noted that present application is moved by the applicant invoking power under Section 482 Cr.P.C. of the High Court, challenging summoning order dated 13.01.2021 as well as the entire proceedings of the criminal case. To be precise, the power of the court concerned while passing order summoning the applicant and power of the High Court U/s 482 Cr.P.C. are two different things. The court below was bound to pass appropriate orders and had to content with what is on record and cannot come to the conclusion about reliability of evidence at the initial stage, however in exercise of power u/s 482 Cr.P.C., this Court has different scope than what magistrate could have applied ....
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.... proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 91. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these ....
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....ll be a mental trauma to the applicants, it becomes necessary for this Court to invoke inherent powers under Section 482 Cr.P.C. in present facts and circumstances of his case. 95. While dealing with the inherent powers of the High Court under Section 482 Cr.P.C., the the Apex Court in the case of Karnataka Emta Coal Mines Limited and Ors. vs. Central Bureau of Investigating reported in 2024 SCC Online SC 2250 has arrived at the following conclusion :- "18.7. As can be gathered from the above, Section 482 Cr.P.C. recognizes the inherent powers of the High Court to quash initiation of prosecution against the accused to pass such orders as may be considered necessary to give effect to any order under the Cr.P.C. or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a statutory power vested in the High Court to quash such criminal proceedings that would dislodge the charges levelled against the accused and based on the material produced, lead to a firm opinion that the assertions contained in the charges levelled by the prosecution deserve to be overruled. 18.8. While exercising the powers vested in the High Court under ....