BAHAUDDIN AHMED Vs. S M ZAFRULLAH

JUDGEMENT

(1.) This is an application under S. 482, Cr. P.C. filed by one Bahauddin Ahmed against S. M. Zafrullah and the state of West Bengal for quashing of the proceeding being the complaint case No. C 2378/98 pending before the Court of Chief Judicial Magistrate, 24-Parganas (South). The relevant facts leading to this application are as follows. S. N. Zafrullah, the O.P. No. 1 of this case lodged a complaint under S. 200, Cr. P.C. before the Chief Judicial Magistrate, 24-Parganas (South) against this petitioner (i.e. the accused of this case) alleging therein that the O.P. No. 1 gave him a sum of Rs. 70,000/- by way of loan on 20-4-1998 on his assurance that he would repay the same as and when asked for. The petitioner-accused in discharge of his liability issued a cheque bearing No. 147492 dated 20-6-1998 for a sum of Rs. 70,000/- drawn on Allahabad Bank, Hazra Road Branch, Calcutta in favour of the O.P. No. 1. The O.P. No. 1 then placed that cheque before his banker namely Oriental Bank of Commerce on 20-6-1998 but the said cheque was dishonoured and returned to him on 25-6-1998. Then the O.P. No. 1 sent an Advocate's letter dated 30-6-1998 to the petitioner-accused which was received by him on 4-7-1998. Thereafter the O.P. No. 1 waited for fifteen days for payment of that amount of Rs. 70,000/- but the petitioner-accused did not make any payment and hence the O.P. No. 1 instituted the said complaint. The learned Chief Judicial Magistrate took cognizance of an offence under S. 138 of the Negotiable Instruments Act and issued summons directing the petitioner-accused to appear before him on 18-9-1998.

(2.) According to the petitioner the O.P. No. 1 filed a false complaint to harass him. His case is that when this petitioner proposed to form a partnership firm and sought money from the O.P., the O.P. advanced a sum of Rs. 70,000/- to him towards his share in the initial capital but ultimately the idea of the partnership firm became a failure and then the petitioner issued a post-dated cheque in favour of the O.P. No. 1 being cheque No. 147492 dated 20-6-1998 on 21-5-1998 by way of repayment of the amount which he (O.P. No. 1) gave to the petitioner-accused. Before doing so, ther was a discussion between them and also a verbal agreement that if, when the cheque will be presented to the banker, the balance in the petitioner's account falls short of the amount of the cheque, then the petitioner would arrange for payment of the said sum in suitable instalments in cash. When the petitioner came to know that the credit balance in his account would not cover the cheque amount on the due date, he rushed to the O.P. and paid him in cash an amount of Rs. 25,000/- and the same was duly accepted by the O.P. No. 1 and acknowledged. Despite his receipt of this amount in cash out of the total cheque amount of Rs. 70,000/- the O.P. deliberately presented the cheque before the banker only to harass and blackmail the petitioner-accused, although the O.P. No. 1 promised that he would not produce the same before the banker and would return the cheque to the petitioner-accused. Thereafter on 30-6-1998 the petitioner received a notice from the O.P.'s Advocate wherein he was asked to make payment of the entire cheque amount of Rs. 70,000/-, thereby deliberately suppressing that he had already received a sum of Rs. 25,000/- in cash on 19-6-1998. The petitioner also sent a sum of Rs. 5,000/- by money order requesting him to return the cheque as early as possible and undertaking to pay the balance amount as soon as possible. But the O.P. No. 1 refused to accept the money order and the same returned to the petitioner on 20-9-1998 with a postal note "not claimed." The contention of the petitioner is that the amount mentioned in the demand notice for exceeded the total amount of loan given to the petitioner and when thus the demand is not in accordance with law the consequent non-payment cannot give rise to any cause of action in terms of S. 138(1) of the Negotiable Instruments Act and since there was no cause of action, no complaint could be mae in accordance with S. 142(b) of the said Act and as such the taking of cognizance in such facts and circumstances cannot be tenable under the law.

(3.) From the averments in the petition it is thus admitted that the petitioner received a sum of Rs. 70,000/- from the O.P. 1 by way of loan and he is liable to repay the same. According to the settled position of law, a criminal proceeding is liable to be quashed only when the very allegations in the complaint taken at their face value and accepted in their entirety do not disclose the ingredients of any offence. Because, in such a case no question of appreciating evidence arises. But, in exercise of the jurisdiction under S. 482, Cr. P.C. the High Court cannot emburk upon an enquiry as to whether the merits of the case are liable to or not to suffer any set back due to the defence case being found to be worthy of reliance (vide 1990 Cri LJ 320 (SC), AIR 1996 SC 722 and 938). It has also been an established principle by now that the power of quashing a complaint should be exercised sparingly and with circumspection and that too in the rarest of rare cases and the High Court will not be justified in holding an enquiry as to the genuineness or otherwise of the allegations made in the FIR on the complaint at this stage when the trial is yet to commence. The normal process of the investigation cannot be cutshort in a rather casual manner and the inherent power of the High Court should be exercised to stiffle a legitimate prosecution.