Case Note & Summary
The applicant, Kamalkishor Shrigopal Taparia, filed four criminal applications challenging the orders passed by the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, directing issuance of process against him and other accused in complaints filed by Respondent No.1, India Ener-Gen Private Limited, under Section 138 of the Negotiable Instruments Act, 1881. The applicant contended that the complaints lacked specific averments that the cheques were issued towards discharge of a legally enforceable debt or liability, which is a prerequisite for the offence under Section 138. The court examined the complaints and found that they merely stated that the cheques were issued towards payment of dues, without specifying the nature of the debt or liability. The court held that the essential ingredient of a legally enforceable debt or liability was not made out, and therefore, the issuance of process was unjustified. The court allowed the applications, quashed the process issued against the applicant, and set aside the impugned orders.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Legally Enforceable Debt or Liability - The complainant must make specific averments that the cheque was issued towards discharge of a legally enforceable debt or liability. In the absence of such averments, the complaint is not maintainable and the process issued is liable to be quashed. (Paras 1-13)
B) Criminal Procedure Code - Quashing of Complaint - Section 482 - Inherent Powers - The High Court can exercise its inherent powers under Section 482 CrPC to quash proceedings if the complaint does not disclose the essential ingredients of the offence. (Paras 1-13)
Issue of Consideration
Whether the learned Magistrate was justified in issuing process against the applicant/accused under Section 138 of the Negotiable Instruments Act, 1881, in the absence of specific averments in the complaint that the cheques were issued towards discharge of a legally enforceable debt or liability.
Final Decision
The court allowed the criminal applications, quashed the process issued against the applicant, and set aside the impugned orders of the learned Metropolitan Magistrate.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- legally enforceable debt or liability
- specific averments
- issuance of process
- quashing of complaint
Case Details
2019 LawText (BOM) (08) 98
Criminal Application No.116 of 2019, Criminal Application No.21 of 2019, Criminal Application No.22 of 2019, Criminal Application No.255 of 2019
Mr. Rohan Rajaram Sonawane for the Applicant, Mr. Yogesh Israni for Respondent No.1, Mr. A R Patil, APP for the Respondent/State
Kamalkishor Shrigopal Taparia
India Ener-Gen Private Limited, The State of Maharashtra
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Nature of Litigation
Criminal applications challenging the orders of the Metropolitan Magistrate directing issuance of process under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
Quashing of the process issued against the applicant/accused in the complaints filed by Respondent No.1.
Filing Reason
The applicant contended that the complaints lacked specific averments that the cheques were issued towards discharge of a legally enforceable debt or liability.
Previous Decisions
The learned Metropolitan Magistrate had directed issuance of process against the applicant and other accused.
Issues
Whether the complaints under Section 138 of the Negotiable Instruments Act, 1881, contained specific averments that the cheques were issued towards discharge of a legally enforceable debt or liability.
Whether the learned Magistrate was justified in issuing process in the absence of such averments.
Submissions/Arguments
The applicant argued that the complaints did not make specific averments that the cheques were issued towards discharge of a legally enforceable debt or liability, which is essential for the offence under Section 138.
The respondent/complainant argued that the complaints were maintainable and the process was rightly issued.
Ratio Decidendi
For an offence under Section 138 of the Negotiable Instruments Act, 1881, the complaint must contain specific averments that the cheque was issued towards discharge of a legally enforceable debt or liability. In the absence of such averments, the complaint does not disclose the essential ingredients of the offence, and the process issued is liable to be quashed under Section 482 of the Code of Criminal Procedure, 1973.
Judgment Excerpts
The above group of four Criminal Applications has been filed by the Applicant - original accused, challenging the orders passed by the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai.
It appears that Respondent No.1 – original Complainant has filed complaints under Section 138 of the Negotiable Instruments Act, 1881.
The court held that the complaints lacked specific averments that the cheques were issued towards discharge of a legally enforceable debt or liability.
Procedural History
The applicant filed four criminal applications before the High Court of Judicature at Bombay challenging the orders of the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, who had directed issuance of process against the applicant and other accused in complaints filed by Respondent No.1 under Section 138 of the Negotiable Instruments Act, 1881.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 482
