Whether the court should quash prosecution for the dishonour of cheque if the accused has filed police complaint regarding the loss of leaves of the cheque?

It is next contended on behalf of the petitioner that the petitioner had already lodged a police complaint (NCR) on 25.09.2018 regarding loss of 6/7 cheque leaves of SBI bank. It is contended that the same were stolen by the complainant and the present cheque being one of them, is misused.

12. I have perused the NCR filed by the petitioner as well as the reply filed on behalf of the petitioner to the legal notice. The NCR dated 25.09.2018 lodged by the petitioner, a resident of Vaishali, Ghaziabad, U.P. is about loss of 6/7 signed cheque leaves at Mayur Vihar-I, Delhi and not their theft. Further, the NCR neither mentions the serial numbers of the cheques nor the name of the complainant. In his reply to the legal notice, it was stated that the cheque leaves were stolen by the complainant from the petitioner's house (which is in Vaishali, Ghaziabad) however, no specific date has been mentioned as to when the complainant visited the petitioner's house and stole his signed cheques. The aforementioned two places are distant. Prima facie, the defence taken appears to be self-contradictory.

13. The disputed questions of facts are not to be gone into while exercising power under Section 482 of the Cr.P.C. The Supreme Court in S. Krishnamoorthy v. Chellammal reported as MANU/SC/0372/2015 : (2015) 14 SCC 559 held that when defence of the accused is only factual in nature which is neither admitted by the complainant, nor apparent on the face of the record, then it could be appreciated only by the trial court after the parties have led their evidence.

IN THE HIGH COURT OF DELHI

Crl. M.C. 626/2020

Decided On: 29.06.2020

 Satendra Pal Singh Malik  Vs.   Dhirendra Raj

Hon'ble Judges/Coram:

Manoj Kumar Ohri, J.

 Citation: MANU/DE/1322/2020

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Whether process can be issued against complainant of case of dishonour of cheque on the basis of defence of accused of that case?

 Learned counsel for respondent no. 2 has pointed out to
me observations of the learned Magistrate while acquitting respondent

no. 2 of the offence punishable under Section 138 of Negotiable
Instruments Act and in order to support his argument that there was
something available on record which would warrant full-fledged trial of
the applicants. In the proceedings initiated under Section 138 of
Negotiable Instruments Act against respondent no. 2 by the applicants,
the learned Magistrate on merits of the case found that disputed
cheques did not bear signatures of the accused, i.e. respondent no. 2,
and the defence of respondent no. 2/accused that the disputed cheques
were stolen by the applicants was acceptable. These observations
relate to probabilising of the defence of the accused in that case, who
is respondent no. 2 in the present case and, therefore, it would have no
abiding effect on the merits of this case. Standard of proof for
accepting defence of accused in a criminal case is different than what is
required for proving an offence. Defence is accepted or rejected on the
law of probabilities. Offence is proved on the law of proof beyond
reasonable doubt. It means acceptance of an averment taken in
defence may not always lead to a conclusion that it is proved and would
only suggest that it is possible and hence creating doubt in prosecution
story. As such, said observations cannot be considered for examining
sufficiency of grounds to proceed further in a criminal prosecution
launched against the applicants. In the present case, respondent no. 2
would be required to stand on his own strength showing existence of
sufficient material for proceeding further against the applicants, which,

in my opinion, the respondent no. 2 has not done successfully.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
 CRIMINAL APPLICATION (apl) No. 627 OF 2013 WITH
CRIMINAL APPLICATION No. 628 OF 2013
(1) Crim. Appln. No. 627/13
 Ashok s/o Kishorilal Banarsi V State of Maharashtra,

    CORAM  :      S.B. SHUKRE,     J.     
DATED  :  24.02. 2015.
Citation; 2015 ALLMR(CRI)4901

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