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Chandan Health Care Ltd. & Others v/s Saraswati Devi

    Criminal Misc. Application (C-482) Nos. 361 & 362 of 2014

    Decided On, 04 September 2017

    At, High Court of Uttarakhand

    By, THE HONOURABLE MR. JUSTICE U.C. DHYANI

    For the Applicants: Lalit Sharma, Rudra Pratap Singh, Advocates. For the Respondent: ----.



Judgment Text

Oral

1. By means of Criminal Misc. Application no. 361 of 2014, filed under Section 482 Cr.P.C., the applicants seek to quash the summoning order dated 07.08.2013, as also the entire proceedings of complaint case no. 652 of 2012, Saraswati Devi vs Chandan Health Care Ltd., under Section 138 of the Negotiable Instruments Act, 1881, police station, Clement Town, District Dehradun, pending in the court of learned Special Judicial Magistrate I, Dehradun.

2. By means of Criminal Misc. Application no. 362 of 2014, filed under Section 482 Cr.P.C., the applicants seek to quash the summoning order dated 07.08.2013, as also the entire proceedings of complaint case no. 73 of 2013, Saraswati Devi vs Chandan Health Care Ltd., under Section 138 of the Negotiable Instruments Act, 1881, police station, Clement Town, District Dehradun, pending in the court of learned Special Judicial Magistrate I, Dehradun.

3. Since factual matrix of both the applications under Section 482 Cr.P.C. is the same, therefore, they are being decided together by this common judgment and order for the sake of brevity.

4. Applicants are summoned to face the trial under Section 138 of the Negotiable Instruments Act. Notice was issued to the respondent, but none has turned up for the respondent, despite service of notice. When both the applications under Section 482 Cr.P.C. were taken up for hearing on 23.04.2014, this Court passed the following order:

'…It is submitted by learned counsel for the applicants that fresh cheques of the same value have been given to the respondent and she has encashed the said cheques as is evident from the statement of bank account (Annexure-6).

Learned counsel for the applicants also stated that the proceedings under Section 138 of the Negotiable Instruments Act were initiated earlier and the cheque was encashed later….'

5. Regard may also be had to the following averments made in both the applications under Section 482 Cr.P.C. The averments made in paras 10, 11, 12, 13, 14 and 15 are being reproduced here-in-below for reference:

'It is also pertinent to mention here that prior to the letter dated 17.12.2011, and through telephonic conversation, the applicants also informed the respondent about the aforesaid clerical mistakes and issuance of fresh cheques against the aforesaid stopped payment cheques.

The applicants hence received a legal notice on 22.01.2012 in reference to the stop payment of cheque no. 291892 sent by the counsel of respondent. In reply thereof, the applicant company by its letter dated 27.01.2012, intimated regarding the stop payment instructions and the respondent requested not to deposit the cheque as fresh cheque against the same had already been issued and sent to the respondent and also received by the respondent as it is also confirmed by the respondent telephonically.

The applicants once again received a legal notice regarding the non-payment of cheque no. 291894 dated 15.01.2012, while respondent had already been informed by the letter dated 17.12.2011, not to deposit the cheque as it was issued pre-dated due to clerical mistake and fresh cheques were also enclosed with that letter in lieu of pre-dated cheques, as well as also received by the respondent. These facts were once again explained to the respondent through letter dated 15.03.2012 by the applicants. It is also pertinent to mention here that in lieu of cheque no. 291894 two fresh cheques bearing no. 283012 dated 25.05.2012 and cheque no. 283013 dated 25.06.2012 were issued and also encahsed by the respondent respectively on 28.05.2012 and 26.06.2012.

On 27.03.2012, the respondent received payment of Rs. 1 lac through the cheque bearing no. 283010 dated 25.03.2012 which was issued by the applicant company in lieu of the cheque no. 291892 dated 15.11.2011 and similarly respondent received Rs. 1 lac on 26.04.2012 through cheque no. 283011 dated 25.04.2012, Rs. 50,000/- on 28.05.2012 through cheque no. 283012 dated 25.05.2012, Rs. 50,000/- on 26.06.2012 through cheque no. 283013 dated 25.06.2012 and Rs. 1 lac on 26.07.2012 through cheque no. 283014 dated 25.07.2012 in lieu of the other pre-dated cheques which is crystal clear from the perusal of the SOA.

The amount alleged by the respondent has been paid upon by the applicants as well as received by the respondent as such no offence under Section 138 Negotiable Instruments Act, 1881, is made out.

Further no offence under Section 138 Negotiable Instruments act, 1881, whatsoever is made out as the cheque which has been pre-dated due to clerical mistakes have been used for the harassment and the allegations made in the complaint are false and frivolous which cannot be sustained and it is again pertinent to mention here that information regarding stop payment of the pre-dated cheques had already been given to the respondent and fresh cheques were also sent to the respondent prior to the presentation of clerically mistaken pre-dated cheques.'

6. Being satisfied with the aforesaid submission of learned counsel for the applicants, this Court is of the opinion that proceedings under Section 138 of the Negotiable Instruments Act, 1881, should be dropped against the applicants, especially, when the applicants have already given the money soon after receipt of notice from the respondent and the money was encashed by the respondent.

7. Although inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itse

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lf, but the applicants, in the instant case, are able to pass those tests. 8. Considering the overall conspectus of facts, this Court is of the view that both the petitions under Section 482 Cr.P.C. should be allowed in the interest of justice. The same are hereby allowed. Summoning orders dated 07.08.2013, as also the entire proceedings of complaint case no. 652 of 2012 as well as complaint case no. 73 of 2013, both titled as Saraswati Devi vs Chandan Health Care Ltd., under Section 138 of the Negotiable Instruments Act, 1881, registered with police station, Clement Town, District Dehradun, are hereby set aside.
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