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2021 (11) TMI 650 - HC - Indian LawsDishonor of Cheque - cheques are signed by the petitioner or not - rebuttal of presumption - respondent submits that matrimonial litigation of the petitioner is being used as a shield for non-payment of the amount due - contention of petitioner is that two ingredients for invoking Section 138 of the Act are missing. Firstly that the account was not ‘maintained by her’ and secondly that ‘cheques were not issued for discharging any debt or liability’, rather it is a case of misuse of blank cheques signed by her - scope of complaints under Section 482 Cr.P.C. HELD THAT:- The presumption raised under Section 118 of the Act is that negotiable instrument drawn is for ‘consideration’. As per Section 139 of the Act, unless contrary is proved, it shall be presumed that the cheque received was in the nature of discharge of debt or liability - It is settled law that complaint under Section 482 Cr.P.C. is to be quashed in rarest of rare cases, though the meaning of ‘rarest of rare cases’ is not similar as of Section 302 of IPC. The power of quashing is to be exercised sparingly. Quashing is not to be done mechanically or in a routine manner. The contention raised by learned counsel for the petitioner that account was not maintained by the petitioner is raised on the foundation that account was opened at the behest of respondent No.2. She handed over blank signed cheques to him which were misused. The account was being operated in her absence by the respondent No.2. Expounding on the issue raised would affect the trial in complaint. Suffice to say that account is in the name of the petitioner. There is no dispute that signatures on the cheques are of the petitioner, the account is of the petitioner and that on relevant date she could operate the account. The argument that petitioner had not borrowed any amount from the complainants is a defence available to the petitioner for which an opportunity would be there before the trial Court. Section 139 of the Act raises presumption in favour of the holder of the cheque that cheque was issued for discharge of debt or liability, albeit presumption is rebuttable. The veracity of defence would be subject matter of the trial. It is not for this Court in the quashing petition to elucidate on the factual defence raised by the petitioner. The stand taken that FIR was got registered alleging misuse of cheque is noted to be rejected at this stage. The FIR was subsequent to issuance of legal notices and the matter is sub-judice in the Court - case does not fall within parameters for quashing of complaints under Section 482 Cr.P.C., the petitions are dismissed.
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