Complaint Quashed against Ex-Director-Section 138 NI Act – Dishonor of Cheque

In harshendra kumar d. V. Rebatilata koley etc {(2011) 3 scc 351; decided on 8-02-2011} hon’ble supreme court has held as follows (in para 26 and 28).

“26……………in our opinion, the high court fell into grave error in not taking into consideration the uncontroverted documents relating to appellant's resignation from the post of director of the company. Had these documents been considered by the high court, it would have been apparent that the appellant has resigned much before the cheques were issued by the company.”

“28. These appeals are, accordingly, allowed. The judgment of the calcutta high court dated september 6, 2007 and the summons issued by the metropolitan magistrate, calcutta to the appellant are set aside. The complaints as against the appellant stand quashed.” (capitals supplied)

The court further observed in aforesaid case as follows (in para 25 and 26).

“25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the high court in exercise of its jurisdiction under section 482 or for that matter in exercise of revisional jurisdiction under section 397 of the code. It is fairly settled now that while exercising inherent jurisdiction under section 482 or revisional jurisdiction under section 397 of the code in a case where complaint is sought to be quashed, it is not proper for the high court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the high court may look into the materials which have significant bearing on the matter at prima facie stage.” (capitals supplied)

“26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case………….” (capitals supplied) (end)

Note: the views expressed are my personal and a view point only.

Author:

Narendra sharma, consultant (legal)

E-mail: nkdewas@yahoo.co.in