Criminal Application No.203 of 2011

12th December, 2011

Petitioner Counsel: Mr. P.R. PURI
Respondent Counsel: Mr. DEEPAK GUPTA

Cases Cited:
Harshendra Kumar D. Vs. Rebatilata Koley & others, 2011 ALL MR (Cri) 955 (S.C.)=(2011) 3 SCC 351 [Para 4,5,7]
Uplanche Mallikarjun & others Vs. Rat Kanti Vimala & another, 1997 ALL MR (Cri) JOURNAL 31=1997 Cri. L.J. 4237 [Para 4]
Shri Taher N. Khambati Vs. M/s. Vinayak Enterprises, Secunderabad & others, 1995 Cri. L.J. 560 [Para 4]

JUDGMENT

JUDGMENT :- Rule. Rule is made returnable forthwith, and is heard finally by consent of parties.

2. Applicant is praying for quashing of a private complaint under Section 138 of the Negotiable Instruments Act. The quashing is sought in following premise:-

[a] Applicant had given to the respondent a cheque for Rs. 2,50,000-00.

[b] According to the complainant, the cheque was issued by the accused towards security of payment for work to be carried out by the complainant.

[c] The complainant was about to submit the cheque for collection before / or without completing the work.

[d] Applicant, therefore, served upon the complainant a notice asking him not to present the cheque and averring therein that the cheque was not liable to be lodged for collection being issued by way of security.

[e] The respondent disputed the nature of transaction as was claimed by the accused, presented the cheque in the Bank for collection.

[f] The cheque was dishonoured.

[g] No payment was made in spite of service of notice, and the accused had reiterated her stand.

[h] Hence complaint under Section 138 of the Negotiable Instruments Act was filed.

3. According to the applicant :-

Since on what is shown by the complainant, it was a case of the cheque given by the accused by way of security, on said disclosed defence, the complaint was liable to be dismissed.

4. To support her contention, the applicant has placed reliance on following judgments:-

[a] Harshendra Kumar D. Vs. Rebatilata Koley & others [(2011) 3 SCC 351] : [2011 ALL MR (Cri) 955 (S.C.)],

[b] Uplanche Mallikarjun & others Vs. Rat Kanti Vimala & another [1997 Cri. L.J. 4237] : [1997 ALL MR (Cri) JOURNAL 31], and

[c] Shri Taher N. Khambati Vs. M/s. Vinayak Enterprises, Secunderabad & others [ 1995 Cri. L.J. 560].

5. Special thrust is given on Judgment of Hon ble Supreme Court in Harshendra Kumar D s case, [2011 ALL MR (Cri) 955 (S.C.)] supra. Para 25 of the said judgment contains relevant discussion. The gist of dictum, as seen in para 25, is summarized as follows:-

When the defence, which is due to be set up by the accused in the trial, if set up for quashing, could not be brushed aside, and would be capable of scrutiny by the High Court, if it be a case where the defence is based on documents of indisputable character and based on public document or material which is beyond suspicion or a debate.

6. Admittedly, present case is not based on mutual communications. In particular, it is based on the plea of the accused based and disclosed in her own communications. It is not based on documents beyond unimpeccable trust being public documents.

7. As may happen in any other transaction, as the liability is disputed, the very right of the respondent to present the cheque for collection is disputed. What is put up as a defence is that a prior agreement which provides that the cheque was to be kept as security.

This defence, as put up in the present case, does not fit into the parameter devised and made available by the Judgment of Hon ble Supreme Court in case of Harshendra Kumar D., [2011 ALL MR (Cri) 955 (S.C.)] [cited supra].

8. The nature of defence is such that its worthiness is contingent upon its proof. The case, therefore, does not stand on par with one based on a piece of evidence which can be described as indisputable in nature due to any legal presumption as to proof such as available to a public document.

9. In the result, the application does not deserve any indulgence. Rule is discharged.

Application dismissed.