Gurdiyal Singh v. Kotak Mahindra Bank Limited
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7.
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.
8.
In view of the above discussed proposition of law, it is explicit that a complaint can be quashed 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.
9.
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 lodged by the respondent is 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 him as a security cheque against the loan obtained by him and the same was not issued on 07.12.2022 as he was in custody at that time. 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, he has neither denied his signatures on the cheque in question nor the factum of issuance thereof. His
It is not his claim that as on the date of issuance of cheque in question, the liability to make payment of the amount as mentioned therein did not subsist. So far as the factum of petitioner's being in custody at the relevant time is concerned, the disputed question of facts cannot be decided 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. Reliance in this context can be placed upon
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'security', the consequences flowing therefrom are
also known to the drawer of the cheque and if such cheque is presented and dishonoured, the holder of the cheque would have the option of initiating the civil proceedings for recovery or the criminal proceedings. 10.
Since in this case, the claim of the petitioner himself is that the cheque in question was issued by way of security, therefore, the contention that it should be held as security even after the amount had become due and payable cannot be considered to be sustainable. 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.
11.
It is also relevant to mention that the petitioner has not laid any challenge to the summoning order. , -
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