Nazir Ahmad Dar vs Faiyaza Sultana

It is being admitted by giving brief reference of the same in the present petition that cognizance had been taken by learned Chief Judicial Magistrate, Srinagar, on a complaint titled Mrs. Faiyaza Sultana v. Nazir Ahmad Dar on 02.11.2015, in terms of which process was issued and the petitioner summoned to face charge of the commission of offence under Section 138 Negotiable Instruments Act. The evidence of the complainant had been recorded and thereafter the petitioner had been convicted for the commission of offence under Section 138 Negotiable Instruments Act. Same had been challenged before the learned Principal Sessions Judge, Budgam, who had set aside the conviction and sentence on 04.10.2017, in terms of order annexed with the petition (as Annexure IV). Direction was given to the trial court to proceed further in the matter with following observations:

"Therefore, from all the narration of the minutes of the proceedings, recorded by the learned Trial Court, it is amply clear that the learned Trial Court has committed illegality of procedure by not hearing accused and by not allowing opportunity to him to lead defence evidence. These illegalities are incurable in nature and trial has vitiated on account of these illegalities committed by the learned Trial Court. This has rendered the judgment to be illegal. Therefore, judgments and sentence in all the four complaints are liable to be interfered with. Appeals are, accordingly, accepted. The judgment of conviction and sentence impugned in these four appeals are set aside. The cases are remanded to the learned Trial Court to proceed in accordance with the procedure prescribed under Section 244 Cr. PC. Learned Trial Court shall proceed from the stage of hearing the accused and allowing him to lead defence evidence, where after the learned Trial Court shall pass fresh judgment as may be appropriate on appreciation of facts and law obtaining in the matter. Appeals are disposed of accordingly. File be consigned to records. Record of the learned trial Court in all the four cases along with the copy of this judgment be sent down. Parties are directed to appear before the learned Trial Magistrate on 30.10.2017."

The order passed by learned Principal Sessions Judge was called in question in terms of earlier petition filed before this Court bearing CRMC No. 339/2017 C/w CRMC Nos. 340, 341, 342 of 2017, which was disposed of as stated in the petition with the following directions:

In view of the preceding analysis, these petitions are disposed of with the following modifications while maintaining and upholding the order of the learned Sessions Judge on all counts:

(i) That the trial Court shall give one opportunity to the respondent accused to adduce evidence in defence and thereafter hear the respondent accused.

(ii) That the trial Court shall deal with each of the complainants separately and fix different dates.

It is not thus dispute that the petitioner on appearance before the Court which took cognizance in the matter had given his account regarding allegations levelled in terms of complaint annexed with the petition (as Annexure-III). The allegations levelled against the petitioner as referred in complaint are as:

(i) That the respondent accused issued cheque for an amount of Rs. 42,00,000/- vide cheque No. 000130 dated 18.08.2015 drawn on HDFC Bank Ltd. Baghat Barzulla Chowk, Srinagar.

(ii) That the said cheque was presented by the complainant in her account No. SB-7650 in J&K, Bank Branch, Humhama. The said Bank, in accordance with existing procedures sent the cheque to the concerned bank of the respondent accused for clearance.

(iii) That the complainant was returned the aforesaid cheque alongwith the Memo of the bank. The Memo of the bank stated as follows:

"Account Closed"

In this manner the cheque issued by respondent accused has remained unpaid and the cheque has been dishonoured by the bank

(iv) That the complainant through her counsel sent the Notice of demand dated 05.09.2015, by registered post. Notice was registered by the Post Office located in the Hon'ble High Court Building Srinagar. The Notice was sent by Registered Post on 09.09.2015. Along with the registered envelope containing the Notice of Demand "Acknowledgment Due" was also sent. The Notice of Demand was sent on the following address:

"Nazir Ahmad,

President,

Gousia House Building Cooperative Society Ltd.

House No. 19 Bismillah Lane, Parray Pora,

Srinagar.

In the Notice of Demand respondent accused was called upon to pay the amount covered by the cheque within 15 days of the receipt of the Notice. It is stated that no payment has been made by the respondent accused till date.

(v) That the Notice of Demand was registered on 09.09.2015. As on date this complaint is lodged 30 days are over. It is, therefore, presumed that the respondent accused has been served with the Notice of Demand.

(vi) That having regard to the provisions of Section 138 of the Negotiable Instruments Act and the facts stated hereinabove the respondent is guilty of the offence under the provisions of the said Act.

(vii) That the cheque had been issued by the respondent accused in consideration of the amount received by him from and through the attorney holder for Flat. The respondent accused represents Gousia House Building Cooperative Society and had publicly notified through Brochure, about the booking of the Flats to be constructed at Rawal Pora under the name and style of

"Chinar Apartments", Block "C". The respondent accused constructed skeleton structure of the Flats, incomplete in all respects, despite having received full payment. The accused was to provide Semi-finished Flat (90% complete) to the complainant through the attorney holder. The respondent accused failed to complete the flats in accordance with the representation made by him. Not only that, the respondent accused sold the flats to different persons which eventually lead to quarrel and disturbance among the allottees at site. In view of the non-completion of the flats and the criminal mischief played by respondent accused the complainant through the Attorney Holder settled the matter with respondent accused.

(viii) That having regard to the amount already received by respondent accused from the attorney holder, price escalation, interest etc. the respondent accused with a view to discharge liability issued cheque No. 000130 dated 18.08.2015 payable on 18.08.2015."

The pleas had been taken in the appeal filed before the Court of learned Principal Sessions Judge, were as:

(i) The conviction and sentence in the four complaints has been passed in complete negation of the criminal jurisprudence. The appellant was never given any chance to lead any evidence in his defence. Learned trial Magistrate has deviated from the procedure which has rendered the judgment of conviction and order of sentence to be illegal and pervese.

(ii) The learned Trial Court lacked jurisdiction to try the complaints for the reason that alleged offence has been committed with the territorial limits of District Srinagar and it is the Courts at Srinagar which alone had the jurisdiction to try the complaints. The cheques in question were issued and drawn on HDFC Bank, Branch Baghat Barzulla, which is also situated within the territorial limits of District Srinagar.

(iii) Order of Sentence passed by the learned trial Court is also without jurisdiction, for the reasons that it violates the mandate of Section 32 of Cr. PC.

(iv) Magistrate of 1st Class can impose the maximum punishment of imprisonment for three years and fine of Rs. 5000/-. The learned Trial Court has exceed its limit by imposing the sentence of fine of double the cheque amount. In each of the complaints, the cheque amount runs in lacs of rupees which goes beyond the pecuniary limit of trial Court in the matter of imposing sentence.

The petitioner has not made any mention in the instant petition about the follow-up made in terms of directions passed by this Court in earlier petition. It is also not being stated, as to why the directions passed by this Court have not to be complied with, now for producing evidence in defence.

It may also need a mention here that at the time of disposal of earlier petition, the Coordinate Bench has made observation with regard to the matter as:

"Before concluding the matter, it appears to me that the complainants were clearly cheated by the respondent-accused. In their complaint, it is stated that the respondent-accused had notified through brochure that the Flats were being constructed at Rawalpora and they can be booked. The complainants trusted the representation so made booked the Flats and provided necessary finances to the respondent-accused. The respondent-accused failed to complete the Flats in accordance with the representation made by him. He sold the Flats to different persons which eventually led to quarrels and disturbances amongst the allottees at site. To close the deal, the parties settled the matter, complainants acting through their attorney holder. The respondent-accused with a view to discharge the lability issued the cheques dated 18.08.2015, payable to the complainants. The deception is writ large when the respondent-accused in his statement says that the accounts in respect of which cheques were issued stood already closed on 18.08.2015. Obviously when the cheques were presented, they were returned as unpaid because the account had been closed by the respondent-accused. It is alleged that the conduct of respondent-accused demonstrated his guilty mind in cheating the complainants and in causing wrongful loss to them and making wrongful gain for himself. The entire deal was done by the complainants through their attorney holder and it is only the respondent-accused who was dealing with the attorney holder in the entire transaction. During the course of hearing, the counsel for the petitioners/complainants also submitted that the respondent-accused has not only cheated the petitioners/complainants but the other persons as well and there are several other cases pending against him. Be that as it may, it is entirely for the trial Court to consider all these aspects during the course of trial."

The contention that cheque had been issued by the petitioner on behalf of Gousia Housing Society, who has not been arrayed as party respondent is being taken thus midway. The proceedings according to petitioner are bad and in this regard reliance is placed on two judgments titled N. Harihara Krishnan v. J. Thomas, reported in AIR 2017 SC 4125 and Aneeta Hada v. M/s Godfather Travels & Tours Pvt. Ltd., reported in 2008 (13) SCC 703, in support of this contention.

It is not being put forth as to whether such a plea was taken when the petitioner was examined under section 242 Cr. PC, or when an appeal was filed against the conviction and sentence or thereafter raised at bar if same was required to be considered when the petition under Section 561-A Cr, PC, had been filed before this Court in which challenge had been thrown to the order of learned Principal Sessions Judge, Budgam. Thus, it requires to seen whether in such a factual situation power under Section 561-A Cr. PC, can be invoked.

Their lordships of Hon'ble Apex Court in Pratibha v. Rameshwari Devi & Others, reported in 2007 (12) SCC 369, while commenting on the scope of power vested in High Court in terms of 482, Cr. PC observed:

"Before parting with this judgment, we may also remind ourselves that the power under Section 482 of the Code has to be exercised sparingly and in the rarest of rare cases."

It may be proper to have reference of principle of law laid down in the case of Jatinder Nath Bakshi v. State of J&K and Others, reported in 2009(3) JKJ 679 (HC) and State of Maharashtra v. Arun Gulab Gawali, reported in AIR 2010 SC 3762.

(i) In Jatinder Nath Bakshi v. State of J&K and Others, this Court in para 13 of the judgment has observed that for quashing of the proceedings or the order under Section 561-A Cr. PC, an extraordinary case is to be made out. The power is to be exercised by the Court in rarest of rare cases and powers to be exercised with great caution as has been mandate by the Hon'ble Supreme Court in plethora of judgments.

(ii) In State of Maharashtra v. Arun Gulab Gawali, the Apex Court in para 12 of the judgment has observed that the power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR/Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage not it can 'soft-pedal the course of justice' at a crucial stage of investigation proceedings. The provisions of Articles 226, 227 of Constitution of India and Section 482 of the Coe of Criminal Procedure, 1973 (hereinafter called as 'Cr. PC.') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers."

In the above conspectus of the case, I am of the opinion that it would be quite unwise and unhealthy to allow the petitioner to scuttle the process initiated in terms of the directions passed by this Court earlier. Same has attained finality and has to be acted upon. If the petition in hand is entertained on the grounds referred in petition that would tantamount to encourage the parties to move successive petitions in piece-meals. It would certainly be against the principles of public policy and it in no way would advance the cause of justice. The petitioner herein has an efficacious remedy available for making learned trial Court conversant with the plea now taken and pray the same to be examined, if otherwise it would be permissible to raise such a plea before the trial Court. No interference at this stage is made out. The judgments relied on by learned counsel for the petitioner would have no application at present. The petitioner can press the contentions in the light of principle of law laid down in the said judgment, if permissible before the Trial Court itself.

Their lordships of Hon'ble Apex Court in Simrikhia v. Dolley Mukherjee, reported in 1990 (2) SCC 437, had enunciated that inherent power cannot be exercised for doing that which cannot be done on account of bar under other provisions of the Code. Second application was held to be not maintainable as it if entertained would virtually amount to review of the earlier order for which there is a specific bar created under Cr. PC.

No interference at this stage is made out. The petition merits dismissal and is, accordingly, dismissed, along with connected IA.

Costs of an amount of Rs. 10,000/- is imposed on petitioner for wasting the time of Court on flimsy grounds and derailing the process required to be finalized in terms of order passed by this Court in earlier petition under Section 561-A Cr. PC. Same shall be deposited in the account of High Court, Legal Service Authority, within two weeks from today.