Bouncing Of Cheque

 

 

IN THE Judgement of the case –Geeta Devi v. UCO Bank, delivered on September 4, 2024 Justice Rakesh Kainthla has held at the Himachal Pradesh High Court that, in the case of bouncing of cheque the complaint in the case cannot be quashed on the grounds that the cheque was issued without consideration and conditions for its presentation were not satisfied. It was submitted that the accused had deposited the amounts which were not endorsed by the Bank. The notice to the accused is bad as it was issued for the whole amount of the cheque. This submission will not assist the petitioner-accused. The statement of account shows that an amount of Rs 9,25,417/- was due towards the Bank on March 5, 2019. The cheque was issued on March 7, 2019 for an amount of Rs 1,19,423/- which is much less than the amount of Rs 9,25,417/- due on March 5, 2019. Therefore, the plea of the petitioner-accused that she was not liable to pay Rs 1,19,423/- on the date of the issuance of the cheque is not acceptable. It was asserted in the reply that the trial court has completed the recording of evidence and the matter is now listed for recording the statement of the accused.

 

The petitioner has not challenged the orders taking cognisance and putting notice of the accusation. It was laid down in Naresh Kumar and others v. State of HP and others 2023 STPL 2994 HP that where the orders passed by the Court of competent jurisdiction of taking cognisance and framing charges were not challenged, the Court will not exercise jurisdiction under section 482 of CrPC to quash the FIR/complaint case regarding bouncing of cheque. It has been observed in the said judgement that “10. Keeping in view the above-noticed dictum that the FIR in question cannot be quashed, at this stage, in the absence of any specific challenge to the investigation conducted by police and also orders passed by the Court of Competent Jurisdiction, whereby firstly, cognisance was taken and thereafter the charges were framed. During the course of hearing, the Court was informed by the counsel for respondent No. 4 that most of the prosecution witnesses have been already examined in the case.

 

“This Court while exercising jurisdiction under section 482 of CrPC. will not hold any inquiry into the factual aspect of the matter. The facts alleged in the petition and also canvassed on behalf of the petitioner by the counsel representing her are subject to trial and hence, cannot be gone into by this Court, at this stage.” The petitioner has filed this petition for quashing of complaint in a case of bouncing of cheque pending before the Trial Court of the Additional C.J.M., Shimla, Court No. 2. The respondent-complainant ‘s case to prosecute lady petitioner for the offence punishable under section 138 of the Negotiable Instruments Act. The accused executed various documents required for loan from the Bank to her, by way of financial assistance for obtaining office accommodation. The loan was repayable in monthly instalments. The accused defaulted in making repayment as per schedule. She issued a cheque for Rs 1,19,423/- towards the overdue loan liability. The cheque bounced with the remarks –“funds insufficient”. The complainant sent a notice to the accused, which was returned with the postal remark – “Delivery refused. As the accused failed to make repayment, the complaint was filed against the accused as per law. The parameters for exercising jurisdiction under section 482 of CrPC were laid down by the Supreme Court in its decision A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it has been observed: “9.

 

The law with regard to exercise of jurisdiction under section 482 of CrPC to quash complaints and criminal proceedings has been succinctly summarised by the SC in the decision –Indian Oil Corporation v. NEPC India Ltd.-(2006) 6 SCC 736 after considering the earlier precedents.

 

“12. (i) a complaint can be quashed where the allegations made in the complaint , even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out the case alleged against the accused. “For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing a complaint. “ (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceedings is found to have been initiated with mala fides/ malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. “(iii) The power to quash shall not , however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. “(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary actual foundation is laid in the complaint , merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are necessary for making out the offence. “(v) A given set of facts may make out; (a) purely a civil wrong; (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding , the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” In conclusion, the HC has stated that there is no reason to quash the complaint pending, before the Trial Court; hence, this petition fails and is dismissed.