A vexatious cheque-misuse complaint filed to counter Section 138 proceedings is an abuse of process.

The complainant alleged that a signed but otherwise blank cheque had been lost and was later presented and dishonoured.

The petitioner’s case was that, before the complaint was filed, he had initiated proceedings against the complainant concerning dishonour of that cheque for ₹4,88,000; the complainant had replied to the legal notice, threatening to implicate him falsely.

The petitioner argued that the subsequent complaint alleging loss of the cheque was a retaliatory attempt to create a defence to his proceedings.

The Chief Judicial Magistrate, Jehanabad, took cognizance against the petitioner under Sections 403 and 420 IPC on 13 July 2017.

The petitioner sought to quash that order.

1. Whether the order taking cognizance against the petitioner under Sections 403 and 420 IPC should be quashed as an abuse of the process of the court

2. Whether the circumstances, including the earlier cheque-dishonour proceedings and the presumption under Section 139 of the Negotiable Instruments Act, supported the petitioner’s contention that the complaint was vexatious and mala fide

Section 139 of the Negotiable Instruments Act raises a rebuttable presumption that the holder received the cheque for discharge, in whole or in part, of a debt or other liability.

The Court also referred to State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, and its categories concerning when criminal proceedings may be quashed, including where their continuation would amount to an abuse of process.

The judgment does not set out or independently analyse the elements of Sections 403 or 420 IPC.

The Court considered the sequence of events: the petitioner’s earlier complaint concerning the dishonoured cheque, the complainant’s reply to the legal notice, and the complainant’s subsequent allegation that the signed cheque had been lost.

It accepted the petitioner’s contention that the complaint was vexatious and intended to create a defence in the cheque proceedings.

Having regard to that assessment, the Section 139 presumption, and the Bhajan Lal principles invoked by the petitioner, the Court found that continuing the prosecution would constitute an abuse of process.

It quashed the cognizance order dated 13 July 2017 in Complaint Case No. 55 of 2017, and allowed the application.