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2021 (2) TMI 966 - HC - Indian LawsDishonor of Cheque - time limitation - grounds raised in the petition is that the alleged date of advancement of loan was barred by limitation - complaint averments disclose that the alleged loan transaction is more than four years and the same is barred by limitation - cheque was presented without an endorsement and it is not in dispute that it is a self-cheque - offence is made out under Sections 138 and 139 of the NI Act constituting an offence or not. Whether this Court can quash the proceedings in coming to the conclusion that the issuance of self cheque in respect of the time barred debt? - HELD THAT:- The very contention of the petitioner is that it is a time barred transaction; the same has to be decided only after recording the evidence not at the preliminary stage of taking the cognizance. It is settled law that whether it is time barred or not involves disputed facts and the same cannot be determined in a proceeding under Section 482 of Cr.P.C. since it involves mixed question of law and fact. Hence, the very contention that the transaction is time barred cannot be decided while taking the cognizance - The Apex Court also in MMTC LTD. VERSUS MEDCHL CHEMICALS & PHARMA (P.) LTD. [2001 (11) TMI 837 - SUPREME COURT], has categorically held that complaint need not allege existing of a subsisting debt or liability against which cheque issued. Burden of proving non-existence of any debt or liability is on the accused, to be discharged at the trial. Prior to that complaint cannot be quashed by High Court under Section 482 of Cr.P.C. In the case on hand also, the Court has only after considering the evidence has to decide whether the liability is in existence or not and the same cannot be decided without recording the evidence. Hence, Section 482 of Cr.P.C. cannot be invoked to quash the proceedings. The Apex Court also in the case of HMT Watches Limited's case, categorically held that Section 482 of Cr.P.C, can be exercised only to prevent abuse of process and further observed that sometimes on same set of facts, civil and criminal proceedings are also maintainable and further held that the sitting under Section 482 of Cr.P.C, while exercising the powers disputed question of fact cannot be disabled. Only the Trial Court can determine the disputed questions of fact - though the petitioner's counsel referred several judgments of different High Courts, it is settled law that whether the transaction is time barred or not has to be considered only after the trial not at the preliminary stage or at the time of taking cognizance - the question is answered in negative. Whether the self cheque issued by the petitioner attracts Section 138 of the Negotiable Instruments Act, 1881? - HELD THAT:- The Kerala High Court in Sarafudheen's case, discussing the same in paragraph No.11 and in paragraph No.12 held that the cheque is styled as a self cheque and over and above it, the term "or bearer" has not been scored off. The holder of the cheque could be a 'holder in due course', who could maintain a complainant under Section 142 of the NI Act - Having perused the principles laid down in the Judgment, the very contention that there is no endorsement and the self cheque does not attract Section 138 of the NI Act, cannot be accepted at this juncture. The respondent made out the prima facie case - question raised by this Court is answered as 'affirmative'. Whether both the Courts have committed an error in taking the cognizance and confirming the cognizance by the Revisional Court and it requires an interference of this court exercising the powers under Section 482 of Cr.P.C.? - HELD THAT:- The petitioner herein himself admitted in his reply to the demand notice dated 03.05.2019 that the petitioner handed over two self cheques each for ₹ 5 Lakhs. It is also clear that the word "bearer" has not been struck off. It is further observed that the scope of revision is very limited and the merits of the case cannot be decided in a revision petition. Further observed that the truth or falsity cannot be entered into by the Revisional Court, that too, in the initial stage of the case. There are no error committed by the Revisional Court also in confirming the taking of cognizance. The matter needs a full- fledged trial to decide the issue involved between the parties and the grounds which have been urged before this Court by the petitioner can be raised before the Trial Court during the course of the trial and the sitting under Section 482 of Cr.P.C, the Court cannot quash the same. Hence, there is no merit in the petition. Petition dismissed.
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