Virendra Mishra vs Pusauram Patel & Others.

The petitioner has filed this petition under Section 482 of the CrPC against the impugned order dated 3.3.2017 passed by the Additional Chief Judicial Magistrate (Shri R.L.Shakya) Gwalior in Criminal Complaint Case No.1108/2012, whereby her application under Section 239 of the Cr.P.C has been dismissed.

The facts, in brief, for adjudication of this petition are given below :-

(2.1) The respondent filed a complaint against the petitioner for her prosecution under Section 138 of the Negotiable Instruments Act (for short the Act) on the ground that he gave her in cash a total of Rs.11,50,000/- (eleven lac fifty thousand) by way of loan for the purchase of a house by

her. For the repayment of the loan, she gave him a cheque bearing No.577406 dated 24.5.2011 (for short ""the cheque) for Rs.11,50,000/-, which is drawn by her on the State Bank of India Branch Mall Road, Morar Gwalior (for short ""the drawee bank), where she has her bank account. For the encashment of the cheque, he deposited the cheque with the Bank of India Branch City Centre Gwalior (for short "the payee bank) with which he has a bank account. On 25.5.2011, the payee bank informed him that the drawee bank had dishonoured the cheque on the ground of insufficient funds" in the bank account of the drawer (petitioner). Thereafter, he gave a demand notice to her in a statutory period but she had not paid the amount. In support of the complaint, the respondent filed affidavits of his own and his witnesses in terms of Section 145 of the Act. On the basis of the complaint and the affidavits, the learned ACJM took cognizance against the petitioner under Section 138 of the Act and he ordered to summon her. The complaint is registered as Criminal Complaint Case No.1108 of 2012 (for short "the case").

(2.2) The petitioner filed an application dated 24.10.2016 under Section 239 of the CrPC (for short "the application") for quashing of the proceedings initiated against her and her discharge under Section 138 of the Act in the case.

(2.3). The learned ACJM heard the learned counsel for the parties on the application. Vide the impugned order, the learned ACJM dismissed the application on two grounds. First :- the provisions of Section 239 Cr.P.C are applicable in a warrant case instituted upon the police report whereas the present case is registered upon the complaint of the respondent under Section 138 of the Act. Moreover, the case is to be tried as summons case in view of the maximum punishment given under Section 138 of the Act. Therefore, the provisions of Section 239 of the CrPC are not applicable in the case and Second :- the court has already taken cognizance against the petitioner under Section 138 of the Act on the basis of the affidavits filed by the respondent and his witnesses in support of the complaint under the provisions of Section 145 of the Act. Since the case is to be tried as summons case, the trial of the case will be held as per the provisions given under CHAPTER XX CrPC wherein there is no provision for discharge once the cognizance is taken and the charge is framed. Moreover, at the stage of framing of the charge under the provisions of Section 251 CrPC, the documents submitted by the petitioner cannot be looked into. Upon a reading of the impugned order, it appears that the learned ACJM has also framed the charge against the petitioner under Section 138 of the Act whereupon the petitioner pleaded not guilty to the charge. Thereafter, the learned ACJM has fixed the case for cross-examinations of the respondent and his witnesses on the affidavits on behalf of the petitioner.

(2.4). Feeling aggrieved thereby, the petitioner has filed this petition seeking the reliefs of quashing the proceedings of the case and for her discharge with setting aside the impugned order.

Learned Counsel for the petitioner submitted that as per the contents of the complaint, the respondent gave a total of Rs.11,50,000/- (eleven lac fifty thousand) in cash to the petitioner in the year 2008 for the purchase of a house by her. As per the documentary material available on record, at the time of granting of the loan, the respondent was minor. Therefore, it is totally unbelievable that he would give such a huge amount in cash to the petitioner. He further submitted that the petitioner had filed a complaint under Section 200 of the CrPC for the prosecution of the respondent and his father Ramavtar. The complaint was registered by the Special Judge (Dacoity) Gwalior against them as Special Sessions Case No.42 of 2011 under Sections 452 IPC, 394 IPC read with 11 of the MPDVPK Act and 506 Part II IPC. In that case, the accusations against the respondent and his father are that on 20.5.2011, they came to her house in the day time when she was all alone. Ramawtar asked her for a loan of Rs.4000/- (four thousand). She refused to give him the loan. Feeling aggrieved thereby, Ramawtar took forcibly a cheque book out of her purse and he forced her to sign on a blank cheque bearing No.577406. They took it away with them. On the basis of the said cheque, respondent filed the complaint against her under Section 138 of the Act. He further submitted that these facts have not been considered by the learned ACJM in the impugned order for quashing the proceedings and discharge of the petitioner. Hence this petition.

Per contra, the learned counsel for the respondent submitted that the learned ACJM had taken cognizance against the petitioner under Section 138 of the Act on the basis of the affidavits of the respondent and his witnesses. Therefore, once the cognizance is taken against the petitioner under the said Act, no questions of quashment of proceedings and her discharge arise. He further submitted that in view of the maximum imprisonment provided under Section 138 of the Act, the case be tried as summons case as per the provisions of CHAPTER XX of the Act wherein there is no provision for discharge. He submitted that it is a trite law that at the stage of framing of the charge, the defence of an accused cannot be considered by the court. Therefore, the learned ACJM cannot consider the defence of the petitioner before the respondent and his witnesses being crossexamined on their affidavits and in their crossexamination the defence is put up in the case. Upon these submissions, the learned counsel for the respondent defended the impugned order.

I have given my full consideration to the submissions made by learned counsel for the parties at the Bar and perused the impugned order and material on record.

As per the provisions of Section 145 of the Act, a complaint under Section 138 of the Act can be registered on the basis of the affidavits of the complainant and his witnesses. As the Negotiable Instruments Act is a special Act wherein the procedure for registration of the complaint is given under that Section, therefore, once the complaint is registered under Section 138 of the Act it cannot be quashed without being taken it to its logical conclusion. In view of the maximum imprisonment provided for under Section 138 of the Act, the case is to be tried as summons case as per the scheme given in the CHAPTER XX CrPC wherein there is no provision for discharge corresponding to the provisions of Sections 239 and

245 CrPC which are absolutely applicable upon the trial of a warrant case instituted on a police report or other than a police report respectively. It is well settled law that the defence cannot be considered at the time of framing of the charge. The same principles applies to this court. As per the impugned order, the learned ACJM has fixed the case for crossexaminations of the respondent and his witnesses upon their affidavits submitted in support of the complaint. Hence, the right procedure would be that the petitioner first has to put up her defence in their cross-examinations. In that view of the matter, I am of the confirmed opinion that the learned ACJM has not made any error of law in passing the impugned order rejecting the prayers made by the petitioner for quashing the proceedings and her discharge under Section 138 of the Act in the case.

In the result, I find that this petition is devoid of merits and substance. Therefore, this petition is dismissed.