Maninder Kaur v. Pooja Malhan
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8.
Similarly, in a recent judgment dated 22.02.2024 titled as 'Vikas Chandra Vs. State of Uttar Pradesh and another 2024 INSC 261', the Hon'ble Supreme Court reiterated the position that the order of issuance of summons could be interfered with by the High Court in exercise of powers under Section 482 of Cr.P.C.
9.
In view of the above discussed proposition of law, it is explicit
that a complaint can be quashed and an order of issuance of summons can be interfered with by this Court by invoking powers under Section 528 of BNSS, however at the same time, it is also to be kept in mind that the inherent jurisdiction under Section 528 of BNSS is to be exercised sparingly and with caution only when such exercise is justified by the test specifically laid down in the section itself. It is well settled proposition of law that an appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of this power and the inherent powers so vested do not confer any arbitrary jurisdiction upon the High Court to act according to whims and caprices.
10.
On applying the above mentioned proposition of law to the facts of the present case, it is to be seen as to whether the complaint as filed by the respondent and the subsequent proceedings are liable to be quashed or not? The main thrust of the arguments address by learned counsel for the petitioner is that the cheque in question was issued by her as a security cheque against the loan taken by her husband from the husband of the respondent, which was subsequently fully repaid to him, and she had no legally enforceable liability towards the respondent and as such the complaint could not be filed against her. However, on going through the record, this Court is of the considered opinion that the contention as raised by learned counsel for the petitioner has no substance in view of the fact that at this stage, she has neither denied her signatures on the cheque in question nor the factum of issuance thereof. Her claim is that the loan was in fact
taken by husband of the petitioner from the husband of the respondent and the same was duly repaid to him. However, a combined perusal of the impugned complaint as well as copy of bank statement (Annexure P-3) reveals that the claim of the respondent is that she had given the said loan to the petitioner in the year 2023 and the cheque in question was issued by her in February, 2024. On the other hand, the transaction by way of which the amount of Rs. 5,80,000/-is shown to be returned to the husband of the respondent pertains to the year 2019, i.e. much prior to period when the loan was allegedly given to the petitioner. These are the disputed questions of facts, which cannot be assessed and examined at this stage in a petition filed under Section 528 of BNSS.
It is well settled proposition of law that if on the date of issuance of cheque, liability of debt exists or the amount mentioned therein has become legally recoverable, Section 138 of the N. I. Act is attracted since issuance of cheque itself represents the outstanding liability.
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11.
The security cheque is integral part of commercial process entered into between the accused and the complainant. It is not only a deterrent for the drawer against dishonouring his financial commitment but can also be legally and validly utilized towards the discharging of the liability of the drawer, as observed by Hon'ble Supreme Court in Shalini Enterprises vs. Inida Bulls Financial Service : 2013 (2) CCC 835. 12.
It is worth mentioning that the learned Magistrate, after considering the evidence produced on record and by forming opinion under Section 227 of Bharatiya Nagarik Suraksha Sanhita, 2023 (which is pari materia with Section 204 of Cr.P.C.) observed that there are sufficient grounds for proceeding and issued summons for procuring the attendance of the petitioner as an accused. The Magistrate was not required to examine the merits and de-merits of the case as the test to be applied at this stage is as to
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