The Supreme Court on the High Court's powers after Investigation

When investigation is incomplete, it is impermissible for the High Court to look into the materials; the acceptability is essentially a matter for trial. Even at the stage where charge is framed, the court has to prima facie be satisfied about the existence of sufficient grounds for proceeding against the accused and for that limited purpose it can evaluate material and documents on record, but it cannot appreciate the evidence.

The Supreme Court made these observations while hearing an appeal filed by the State of Orrissa challenging an order of the High Court which had quashed proceedings at a stage when the investigation in a criminal case was incomplete.

A Division Bench comprising Justice Arijith Pasayat and Justice Tarun Chatterjee while setting aside the order of the High Court observed that the inherent power under Section 482 of the Cr. PC is to be exercised sparingly by the courts and that too in the rarest of rare cases. No hard and fast rule can be laid down as regards cases where such power can be exercised, but the High Court being the highest court of the State should normally refrain from giving a decision in a case where the entire facts are incomplete and hazy.

Further the Bench observed that the exercise of power under Section 482 Cr. PC is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the court possessed before the enactment of the Cr PC. While exercising powers under Section 482 Cr PC, the High Court does not function as a court of appeal or revision. Inherent powers under the section, though wide have to be exercised sparingly.

The court further stated that under this section, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not. That is the function of a trial judge. Judicial process should not be an instrument of oppression. At the same time, the section is not an instrument handed over to the accused to short circuit a prosecution and bring about its sudden death.

Man sentenced in cheque bounce case

Ms Anshul Berry, Judicial Magistrate (Class I), has convicted Darshan Lal, Director, M/s Darshan Forging Pvt Limited, in a cheque bounce case. The accused was sentenced to undergo one year imprisonment and a fine of Rs 2,000 was also imposed on him.

However, the court acquitted Madhu, a co-accused with an observation that it was not proved whether she was the Director of firm or not.

The complainant, Mr Surinder Kumar Sood had stated in the court that he was carrying on the business of iron goods at the Jaimal Singh Road, Janta Nagar, under the name of M/s Surinder Kumar Sood and sons. The accused have been purchasing goods from them and making part payments.

In order to discharge their legally enforceable liability, the accused issued a cheque for Rs 1,95,834 in September, 1994, with an assurance that the same would be encashed on presentation. But to his utter surprise when the cheque was presented for collection it was not dishonoured and returned with a memo of “stop payment’”. Thereafter legal notice was served but no payment was made by the accused, added the complainant.

On the other hand the accused, Darshan Lal had submitted that the goods supplied were defective. He had already intimated to the complainant, not to present the cheque in the bank. The co-accused, Madhu, pleaded that she was a housewife and had nothing to do with the affairs of M/s Darshan Forging.

After hearing the rival contentions the Judicial Magistrate said the defence plea seems to be an after thought. There was no proof to show that the goods supplied were defective. The accused had failed to prove his case, remarked the judge, while pronouncing the judgement.

courtesy:Sri Rajneesh Lakhanpal

CHEQUE BOUNCE[SEC.138 & 142 OF Cr.P.C.

Cases of cheque bounce are not uncommon in the courts. Legal experts are of the view a majority of cases fought pertain to cheque bounce under the Negotiable Instruments Act. In this regard, it would be interesting to take note of two very interesting aspects pertaining to cases relating to cheque bounce. An accused whose cheque was dishonoured contended that the cheques issued were blank ones. He also said that a case of cheque bounce cannot be slapped against him if the cheque is given to a party as a security for repayment of a loan. Justice K Sreedhar Rao in his order stated that both points raised by the accused could not be sustained and would attract the provisions under the Negotiable Instruments Act.

Case at a glance:
A lady had borrowed a sum of Rs 75,000 in connection with some personal business. A blank cheque was issued as security. However the cheque was returned for want of sufficient funds, followed which a complaint had been filed. The accused stated before the court that no prosecution under Section 138 of the NI Act can lie in this case. The trial court dismissed the complaint against the accused following which the High Court was moved.

The Verdict: Justice Rao observed, " The dismissal of the complaint on the plea that the cheque was issued only as a security and therefore no prosecution would lie, is an untenable view. A cheque whether issued for repayment of a loan or as a security makes little difference under Section 138 of the NI Act. In the event of a dishonour, legal consequences are same without distinction. When once a cheque is issued and the same is proved, a presumption under Section 139 of the NI Act would arise with regard to consideration."

Legal view:
K M Natraj says once a cheque is issued there is a presumption under the NI Act that the cheque has been issued towards the discharge of a legally enforceable debt. It is a rebuttable presumption. The accused can rebutt that presumption and the burden is on him to dislodge that presumption