1. Petitioner Ashish Kumar has filed the present petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.P.C.’), seeking the following relief:-

“It is, therefore, respectfully prayed that the present petition may kindly be allowed and Complaint U/s 138 of Negotiable Instruments Act, 1881 bearing no. NIA/214/2020 titled "Rajeev Sabharwal v. Ashish Kumar" pending before Ld. Judicial Magistrate First Class, Kangra at Dharamshala, District Kangra, Himachal Pradesh, may kindly be quashed and set aside and the petitioner may be acquitted of the charges framed against him under Section 138 of the Negotiable Instruments Act.”

2. Petitioner has filed the present petition on the ground that he is proprietor of M/s Anand Prakash & Company, Village and Post Office Nagrota Bagwan, Main Market, Tehsil Nagrota Bagwan, District Kangra, H.P. and dealing in the retail business of mobile phones, whereas, respondent-complainant is proprietor of M/s Sigma Electronics Narwana Bazar, Yol Cantt., Dharamshala, District Kangra, H.P.

3. Petitioner is stated to be in the business with the respondent since the year 2016. Earlier, he used to purchase mobile phones manufactured by Nokia company and from the year 2019, the petitioner started purchasing the phones of Samsung company. For that purpose, the petitioner issued two cheques bearing No. 000004 and 000005 in favour of the respondent-complainant as security. The cheques were handed over blank. Whenever the petitioner purchased the articles from the respondent-complainant, he used to issue various bills. The payment of each bill has been made by the petitioner.

4. All these facts have been pleaded to show that there is no outstanding amount against the petitioner. The petitioner is stated to have misused one of the security cheque bearing No. 000005 by filling the imaginary amount of Rs. 1,40,353/-. The said cheque was presented for encashment without the knowledge of the petitioner. The said cheque was allegedly dishonoured on 22.01.2022. Thereafter, notice, which is stated to be false, has been issued. This notice has been issued knowingly well that there is no legal liability of the petitioner towards the company and amount of all the bills has already been paid to him. Thereafter, respondent has filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘N.I. Act’) before the learned Judicial Magistrate First Class, Kangra at Dharamshala (hereinafter referred to as the ‘learned trial Court’) titled as Rajeev Sabharwal vs. Ashish Kumar, in which he has pleaded that on 18.01.2020, the petitioner approached him and purchased the mobile phones worth of Rs. 75,387/-. There was outstanding amount of Rs. 64,966/- and in discharge of said liability, the petitioner had issued the cheque in question.

5. The relief has also been claimed on the ground that in the complaint, no details qua the mobile phones with regard to the model number, year of manufacturing, IMEI numbers of the mobile phones, allegedly purchased by the petitioner, as well as, details of sale invoice have been mentioned.

6. In nut-shell, it is the case of the petitioner that complaint lacks material particulars. The contents of the complaint are also stated to be concocted.

7. Elaborating his defence, it is further case of the petitioner that he has purchased various articles from the complainant in the year 2019-2020 and in this regard, bills were issued to the petitioner, which have been annexed as Annexure P-2 (Colly.). The payment of all the bills has been made to the complainant and the said factum is reflected in the statement of accounts of the two firms for the year 2017- 2020, copies of which have been annexed as Annexure P-3. It is further case of the petitioner that cheque No. 000004, issued by the petitioner, as security, is still lying with the complainant.

8. On the basis of above facts, it has been pleaded that the learned trial Court should have not taken the cognizance of the offence, as the contents of the complaint does not disclose the commission of offence punishable under Section 138 N.I. Act.

9. Alleging that the complaint is nothing but the misuse of the process of law, a prayer has been made to allow the petition.

10. The Hon’ble Apex Court in Birla Corporation Limited vs. Adventz Investments and Holdings Limited and others (2019) 16 SCC 610 has elaborately discussed the powers of the Court under Section 482 Cr.P.C. The relevant paras 83 and 84 of the judgment are reproduced as under:-

“83. Exercise of power under Section 482 Cr.P.C. envisages three circumstances in 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. Inherent jurisdiction under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution.

84. It is well settled that the inherent jurisdiction under Section 482 Cr.P.C. is designed to achieve a salutary purpose and that the criminal proceedings ought not to be permitted to degenerate into a weapon of harassment. When the Court is satisfied that the criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon the accused, in exercise of the inherent powers, such proceedings can be quashed. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976)

3 SCC 736, the Supreme Court reviewed the earlier decisions and summarised the principles as to when the issue of process can be quashed and held as under:-

“5. ………….. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.”

11. Judging the facts and circumstances of the present case, in the light of the decision of the Hon’ble Apex Court, as referred to above, the complainant, in the present case, has invoked the jurisdiction of this Court under Section 482 Cr.P.C. Along-with the petition, copy of complaint, bills, statement of accounts have also been annexed. The complainant in the complaint has alleged the facts with regard to purchase of mobile phones and in discharge of the liability, the factum of issuance of cheque in question has been pleaded.

12. The relevant paras No. 2 to 5 of the complaint are reproduced as under:-

“2. That, the facts in brief are that the petitioner is a proprietor of M/s Anand Parkash & Company, Village and Post Office Nagrota Bagwan, Main Market, Tehsil Nagrota Bagwan, District Kangra, Himachal Pradesh deals in the retail business of mobile phones. It is submitted that the respondent/complainant is proprietor of M/s Sigma Electronics Narwana Bazar, Yol Cantt., Dharamshala, District Kangra, Himachal Pradesh deals in the wholesale business.

3. That the petitioner has the business dealing with the respondent since the year 2016 whereby earlier the petitioner used to take the phones of NOKIA. Further, in the year, 2019 the petitioner started to take the phones of SAMSUNG and for that purpose the petitioner issued two cheques bearing No. 000004 and 000005 in favour of the respondent/complainant as security.

4. That, the aforesaid cheques were issued as security cheques, which were not filled in by the petitioner. It is submitted that the petitioner has made various purchases from the complainant and the complainant has issued various bills to the petitioner. It is submitted that the petitioner has made the payment of each and every purchase made by him from the complainant.

5. That it is humbly submitted that there is no outstanding amount against the petitioner towards the complainant. The respondent is misusing one of the security cheques bearing No. 000005 issued to him by the petitioner. The respondent has filled the cheque with an imaginary amount of Rs.1, 40,353/-. Further, he has presented the same for encashment without the knowledge of the petitioner, which is alleged to have been dishonored on 22.01.2020.”

13. Whatsoever stand taken by the petitioner before this Court, has no relevance with the contents of the complaint. At the most, it can be said that whatsoever factual position, pleaded in the present petition, is the defence of the petitioner-accused. At the time of summoning the accused for the commission of offence punishable under Section 138 N.I. Act, the contents of the complaint, affidavit filed in the preliminary evidence, as well as, the documents annexed with the same are to be taken into consideration by the learned trial Court. The defence, which the accused will prove/probabilise before the learned trial Court, is not liable to be considered by this Court, at this stage, especially, exercising powers under Section 482 Cr.P.C.

14. The complainant has every right to prove his case by adducing the evidence, when, he would be directed to do so by the learned trial Court. His complaint cannot be quashed on the basis of probable defence, which the accused would take before the learned trial Court, as, it amounts to usurping the powers of the learned trial Court. When, the complainant will appear in the witness box, the accused is free to take any defence or to put the documents to falsify the stand, as taken by the complainant.

15. It is the specific case of the respondent- complainant, in this case, that the accused approached him on 18.01.2020 and purchased the mobile phones, whereas, the stand taken by the petitioner-accused in the present petition, is with regard to the fact that he has made the payment of the bills which have been placed on record as Annexure P-2 (Colly.).

16. At the cost of repetition, it can be said that the complainant has every right to prove the contents of the complaint in order to get the relief, as mentioned in the complaint. His right is subject to the cross-examination of the witnesses examined by him, as well as, subject to the fact that the accused may prove or probabilise his defence. The powers under Section 482 Cr.P.C. cannot be used to consider the probable defence, which, the accused can take before the learned trial Court.

17. The present petition does not fulfill the conditions as enumerated by the Hon’ble Apex Court in Birla Corporation Limited (supra).

18. Considering all these facts, the present petition is liable to be dismissed and the same is dismissed accordingly. Pending applications, if any, also stand disposed of.