Now, after six years, all of a sudden petitioner has come with the present petition seeking quashing of the proceedings, taking the plea that the cheque was lost in 2001. Nowhere it has been mentioned as to whether petitioner has taken this plea before the trial court during the last six years or not. It is well-settled that the benefit of Section 482 Cr.P.C. should not be extended to persons who do not approach the Court at the earliest possible opportunity. So, on account of delays and latches, the petitioner is not entitled to relief as sought for and the benefit under this Section cannot be granted to the petitioner on this short ground alone.
DELHI HIGH COURT
( Before : Vidya Bhushan Gupta, J )
RAJ KUMAR KHURANA — Appellant
STATE (GNCT OF DELHI) AND MADAN LAL SHARMA, PROPRIETOR MANDAN AND BROTHERS GRUIT COMMISSION AGENCY — Respondent
Criminal M.C. No. 2890 of 2007
Decided on : 18-09-2007
Criminal Procedure Code, 1973 (CrPC) – Section 482
Negotiable Instruments Act, 1881 (NI) – Section 138, Section 142
Penal Code, 1860 (IPC) – Section 420
Negotiable Instruments Act, 1881 — Section — 138, 142
Counsel for Appearing Parties
H.G.R. Khattar, for the Appellant; None, for the Respondent
V.B. Gupta, J.—Present petition has been filed u/s 482 Cr.P.C. by the petitioner seeking quashing of the proceedings pending before Shri Mukesh Gupta, MM in case No. 1821/01.
2. Complaint u/s 138 read with Section 142 of the Negotiable Instruments Act and u/s 420 IPC has been filed by respondent No. 2 against the present petitioner on the ground that the complainant has business dealing with the present petitioner and during the course of business transaction, petitioner admitted to the liability to the tune of Rs. 14,52,095/- and gave a cheque for this amount and promised that the same shall be honoured on its presentation. On presentation of the cheque by the complainant, the same was dishonoured by the bank with the remarks ‘said cheque reported lost by the drawer’. Thereafter, legal notice was issued by the complainant and petitioner denied his liability and thus complaint u/s 138 was filed before the MM, where the trial is going on since 2001.
3. Now, all of a sudden, the present petition seeking quashing of the complaint has been filed by the petitioner on the ground that, the petitioner had lodged a complaint on 16th April, 2001 itself with the bank regarding the lost cheques and also lodged complaint with the police and thus there was no occasion for the petitioner to handover the cheque in question to the complainant on 25th June, 2001 and the complainant with mollified intention to extract money from the petitioner, has filed the present complaint based on false and fabricated cheques and other documents and as such no offence u/s 138 of the Negotiable Instruments Act is made out. In support of his contentions, learned Counsel for the petitioner has cited decision of Punjab/Haryana High Court reported as Abdul Samad v. Satya Narayan Mahawar 1990 (2) RCR 335, Shri Swaminathan and Anr. v. State of Haryana and Anr. 1993 (3) RCR 507 and Avon Organics Ltd. v. Poineer Products Ltd. and Ors. 2004 119 Comp Cas 18.
4. Present petition has been filed u/s 482 Cr.P.C. which reads as under:
482. Saving of inherent power of High Court – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
This provision of law envisages three circumstances under which the inherent jurisdiction may be exercised, namely –
i) to give effect to an order under the code,
ii) to prevent abuse of the process of court, and
iii) to otherwise secure the ends of justice.
Further to seek interference under this Section, three conditions are to be fulfillled, namely –
i) the injustice which comes to light should be of a grave and not of a trivial character;
ii) it should be palpable and clear and not doubtful; and
iii) there exists no other provision of law by which the party aggrieved could have sought relief.
5. Keeping in view these principles in mind, it is to be seen as to whether the present petition u/s 482 CrPC is maintainable or not.
6. The present complaint is pending before the trial court for more than six years and the trial is going on and mischievously, the petitioner has not mentioned as to what has happened before the trial court during last six years and what is the stage now.
7. Now, after six years, all of a sudden petitioner has come with the present petition seeking quashing of the proceedings, taking the plea that the cheque was lost in 2001. Nowhere it has been mentioned as to whether petitioner has taken this plea before the trial court during the last six years or not. It is well-settled that the benefit of Section 482 Cr.P.C. should not be extended to persons who do not approach the Court at the earliest possible opportunity. So, on account of delays and latches, the petitioner is not entitled to relief as sought for and the benefit under this Section cannot be granted to the petitioner on this short ground alone.
8. Now, coming to the merits of the case, admittedly the petitioner has issued the cheque duly signed by him to the respondent and the plea regarding theft/lost of the cheque, should have been taken up by him before the trial court and since it is a matter of evidence as to whether cheque was lost or not, it is for the trial court to consider these aspects.
9. Various judgments cited by learned Counsel for the petitioner are not at all applicable to the facts of the present case.
10. Under these circumstances, it is held that the present petition is nothing but an abuse of process of law and is misconceived, devoid of any merits and frivolous one and is liable to be dismissed with exemplary costs. Accordingly, this petition is dismissed with costs of Rs. 10,000/-.
11. Petitioner is directed to deposit the costs with the trial court within one month from today, failing which the trial court shall recover the same in accordance with law.
12. A copy of the judgment be sent to the trial court forthwith.
(2009) 3 CompLJ 17 : (2008) 1 DCR 343