ANJU TOMAR V. M/S HIMACHAL PRADESH COMMERCIAL CORPORATION

CRMMO/1022/2024

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Anju Tomar filed a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging a complaint and summoning order related to a cheque dishonor under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed by M/s Himachal Pradesh Commercial Corporation, alleging that Tomar had issued a cheque that was dishonored due to insufficient funds. Tomar argued that the complaint was false and that she had been wrongfully summoned, citing her transactions and the complainant's alleged status as an unlicensed money lender. The court, referencing various precedents, held that the petitioner's arguments and the documents presented did not warrant quashing the complaint at this stage, as the issues raised were to be addressed during the trial.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 737968 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 08-01-2025
• Assessment Year: misc
• Other Referred Cases: HMT Watches Limited Versus M.A. Abida and Another, Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd., Rallis India Ltd. v. Poduru Vidya Bhushan, Pulsive Technologies (P) Ltd. vs. State of Gujarat, Modi Cements Ltd. vs. Kuchil Kumar Nandi, Sonu Gupta Versus Deepak Gupta and Others, Anil Versus Purshottam
• Laws Referred To: Bharatiya Nagarik Suraksha Sanhita, 2023, Negotiable Instruments Act, 1881, Right to Information Act, 2005, The Himachal Pradesh Registration of Money Lenders' Act, 1976
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: DEEPAK GUPTA
• Assessee Lawyers: RAJIV RAI
• Keywords: Cheque dishonour; Illegal business; Quashing of complaint; RTI Act; Summoning order; Money lender
• Section: 138; 528

Judgement Text

"2025:HHC:1434 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.1022 of 2024 Reserved on : 20.11.2024 Decided on : 08.01.2025 Anju Tomar …Petitioner Versus M/s Himachal Pradesh Commercial Corporation …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Rajiv Rai, Advocate. For the respondent : Mr. Deepak Gupta, Advocate. Virender Singh, Judge Petitioner-Anju Tomar has filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), for quashing of complaint, bearing No.RBT 615-3 of 18/15, titled as ‘M/s Himachal Pradesh Commercial Corporation 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2025:HHC:1434 Vs. Anju Tomar’, filed by the respondent, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘NI Act’), as well as, the summoning order dated 07.10.2015, passed by the Court of learned Judicial Magistrate First Class, Court No.3, Shimla (hereinafter referred to as the ‘trial Court’), along with the proceedings resultant thereto. 2. For the sake of convenience, the parties to the present lis are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 3. Brief facts, leading to filing of the present petition, may be summed up, as under:- 4. The complainant has filed the complaint, under Section 138 of the NI Act, upon which, the learned trial Court has issued the process, vide order dated 07.10.2015. The accused has challenged the said summoning order dated 07.10.2015, on the ground that the complaint, which has been filed, against her, is false one and as per the information, obtained by the accused, under the Right to Information Act, 2005 (hereinafter referred to as the ‘RTI Act’), no case is made out, under Section 138 of the NI Act. 3 2025:HHC:1434 5. To buttress his contention, learned counsel, appearing for the accused, has pleaded that the accused has purchased the clothes, amounting to Rs.10,44,398/-, from the complainant. In this regard, accused has paid Rs.44,398/-, in cash and issued cheque No.676477 dated 21.08.2015, amounting to Rs.6,75,000/-. 6. According to the accused, the complainant is a money lender and her husband had raised a loan of Rs.50,000/- from the complainant and at that time, he has charged the interest @10% per month, against the said loan. He has handed over only Rs.45,000/- to the husband of the accused. 7. It is the further case of the accused that at that time, complainant had also obtained unsigned blank cheque of the accused. In this regard, the accused has relied upon the information, which has been obtained, under the RTI Act, according to which, there are more than 100 cases, filed under the NI Act, by the complainant. 8. Reiterating the fact that the complainant is doing the illegal business of money lending, it has been averred that no case is made out against the accused, under Section 138 of the NI Act. 4 2025:HHC:1434 9. To substantiate her stand, it is the case of the accused that the complainant has also filed another case, under Section 138 of the NI Act, bearing case No.33-3 of 18/15, whereas, the cheque No.676476 dated 17.09.2015 is stated to have been issued, against Bill No.4065 dated 05.06.2015. However, in the present case, the respondent has used the cheque No.676477 dated 21.08.2015, that too, against Bill No.3830 dated 12.07.2013. 10. On the basis of above facts, a prayer has been made to allow the petition, as prayed for. 11. Along with the petition, the accused has annexed the photocopy of the complaint, filed against her, affidavit, in support of the complaint, list of witnesses, copy of cheque, copy of the return memo, copy of legal notice and copy of Bill No.3830 dated 12.07.2013. 12. Apart from this, the information, with regard to the complaints, filed under Section 138 of the NI Act, on behalf of the complainant, from the office of State Public Information Officer at District Level, Senior Civil Judge- cum-CJM, Shimla H.P. has also been obtained, by the accused. 5 2025:HHC:1434 13. According to the said information, 9 cases are pending, before the Court of learned Senior Civil Judge; 4 cases, by way of the criminal appeal, are pending, before the Court of learned Additional District & Sessions Judge (II), Shimla; 22 cases are pending, before the Court of learned Senior Civil Judge-cum-ACJM, Court No.1, Shimla; 3 cases are pending in the Court of learned Senior Civil Judge-cum-ACJM, Court No.2, Shimla; 14 cases are pending in the Court of learned Civil Judge-cum-JMFC, Court No.3, Shimla; 8 cases are pending in the Court of learned JMFC, Court No.4, Shimla and 16 cases are pending in the Court of learned Civil Judge-cum-JMFC, Court No.6, Shimla. 14. As per the information, supplied under the RTI Act, not only the case number and title of the cases, filed by the complainant, but, the cheque amount has also been mentioned therein. 15. The present petition has been filed, under Section 528 of the BNSS (old Section 482 of the Code of Criminal Procedure). This Section gives power to the High Court to entertain or decide the cases, in which, the High 6 2025:HHC:1434 Court feels that the ends of justice require that the order should be made. 16. The powers, under Section 528 of the BNSS, are not at par with the powers of the Appellate Court and at the time of deciding the petition, under Section 528 of the BNSS, this Court has to see only the prima facie case and bare reading of the complaint, if does not make out a case, then, the same has to be quashed, by exercising the inherent power. 17. It is also not in dispute that while deciding the petition, under Section 528 of the BNSS, the defence of the accused is not to be considered. However, the documents, with unimpeachable character, can be considered to decide about the continuation of the criminal proceedings. While holding so, the view of this Court is being guided by the decision of the Hon’ble Supreme Court in ‘HMT Watches Limited Versus M.A. Abida and Another’, reported in (2015) 11 Supreme Court Cases 776. The relevant paragraphs 11 to 15 of the said judgment are reproduced, as under:- “11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd., this Court has made following observations explaining the parameters of 7 2025:HHC:1434 jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: - \"17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter. xxx xxx xxx 22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.' 12. In Rallis India Ltd. v. Poduru Vidya Bhushan, this Court expressed its views on this point as under:- \"12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the 8 2025:HHC:1434 threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm.\" 13. In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court. 14. Lastly, it is contended on behalf of the respondent no.1 that it was not a case of insufficiency of fund, as such, ingredients of offence punishable under Section 138 of the NI Act are not made out. We are not inclined to accept the contention of learned counsel for respondent no.1. In this connection, it is sufficient to mention that in the case of Pulsive Technologies (P) Ltd. vs. State of Gujarat, this Court has already held that instruction of \"stop payment\" issued to the banker could be sufficient to make the accused liable for an offence punishable under Section 138 of the NI Act. Earlier also in Modi Cements Ltd. vs. Kuchil Kumar Nandi, this Court has clarified that if a cheque is dishonoured because of stop payment instruction even then offence punishable under Section 138 of NI Act gets attracted. 15. For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under Section 138 of the NI Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated.” 18. At the time of issuing the process, the Magistrate has to consider the material, before it and Magistrate is not required to consider the defence version 9 2025:HHC:1434 or material or arguments, nor, he is required to evaluate the merits of the material or evidence of the complainant. 19. The Hon’ble Supreme Court in ‘Sonu Gupta Versus Deepak Gupta and Others’, reported in (2015) 3 Supreme Court Cases 424, has held, in paragraphs 8 and 9, as under:- “8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. 9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly 10 2025:HHC:1434 insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.” 20. In this case, the petitioner/accused has sought the indulgence of this Court to quash the complaint, as well as, the summoning order dated 07.10.2015, passed by the learned trial Court, on the ground that the allegations, qua the purchase of clothes, amounting to Rs.10,44,398/-, are not probable. 21. At the time of issuing the summoning order, only prima facie case is to be seen, by the learned trial Court and any objection, with regard to the purchase of the clothes, amounting to Rs.10,44,398/-, will be proved or probabilized, during the trial. 22. So far as the much relied document i.e. the information, obtained by the petitioner/accused, under RTI Act, which has been annexed with the petition, as Annexure P-4, is concerned, from the said information, the petitioner/accused wants to probabilize her defence that the complainant, in this case, is a money lender and 11 2025:HHC:1434 without having the license of money lending, under the provisions of The Himachal Pradesh Registration of Money Lenders’ Act, 1976 (hereinafter referred to as the ‘Act of 1976’), he is not entitled to file the complaint, under Section 138 of the NI Act. 23. No doubt, by way of Annexure P-4, the State Public Information Officer at District Level, Senior Civil Judge, Shimla, has provided the information, with regard to the pendency of the cases, filed by the complainant, in different Courts, but, from this fact, the inference cannot be drawn that the complainant is a money lender, without having the requisite license, under the provisions of Act ibid, because the document is to be read as it is. 24. From the said document, factum of filing of various complaints would be proved/probabilized, but, not the defence of the petitioner/accused that the complainant is a money lender. The said defence would be proved or probabilized, by the petitioner/accused, when the complainant would step into the witness-box. 25. Learned counsel for the petitioner/accused could not satisfy the judicial conscience of this Court, as to how, this Court can anticipate about the probable defence, 12 2025:HHC:1434 which would have been taken by the complainant, when confronted with the factum of filing, so many complaints. 26. No presumption can be drawn from the fact that the complainant has filed a number of complaints and he is a money lender, having no license, under the relevant provisions of the Act of 1976. 27. So far as the case law of the Bombay High Court, as relied upon by the petitioner, in ‘Anil Versus Purshottam’, reported as ‘2010 (0) CrLJ 1217, is concerned, no benefit could be derived by the petitioner/accused from the said case law, as, in the case, before the Bombay High Court, the accused has probabilized the defence, by examining DW-1 Premlata Balasaheb Parkhe, who has produced the Income Tax Returns of the complainant. As such, no benefit could be derived by the petitioner/accused from the said case law. 28. Considering all these facts, there is no occasion for this Court to accept the prayer, so made, by the petitioner, in the present petition. 29. Consequently, the present petition is dismissed, so also the pending miscellaneous application(s), if any. 13 2025:HHC:1434 30. Parties, through their counsel, are directed to appear, before the learned trial Court, on 16.01.2025. ( Virender Singh ) Judge January 08, 2025 (Gaurav Thakur) "