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TMI Blog2015 (5) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 1792, 1793, 1794, 1795, 1796, 1824, 1825, 1826, 1827, 1828, 1829, 1830 and 1831 of 2007 pending in the Court of Judicial First Class Magistrate (Court No. IV), Kochi; and C.C. Nos. 1208, 1209, 1210,1211 and 1212 of 2007, pending in the Court of Judicial First Class Magistrate (Court No. III), Kochi. All these criminal complaint cases were pertaining to offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act"). 2. We have heard learned counsel for the parties and perused the papers on record. 3. Succinctly stated, the appellant filed criminal complaint cases against respondent - M.A. Abida stating that as many as 57 cheques dated 28.09.2006 were issued by her in discharge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the appellant, it is argued before us that the High Court committed a grave error of law in quashing the proceedings of the criminal complaint cases on the factual pleas taken by the respondent no.1. On the other hand, learned counsel for the respondent no.1 contended that since the cheques were given as security, as such there was no liability to make the payment, and the ingredients of the offence punishable under Section 138 of the N.I Act were not made out. 7. Section 138 of the Negotiable Instruments Act, 1881 reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the accounts. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally enforceable debt or other liability." 8. Section 139 of the Negotiable Instruments Act, 1881 provides that there shall be a presumption in favor of holder of a cheque as to the debt or liability. It reads as under: "139. Presumption in favour of holder. - It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability." 9. Section 140 of the Negotiable Instruments Act, 1881 prohibits what cannot be a defence in a prosecution in respect of offence punishable under Section 138 of the N.I. Act. It reads as under: "140. Defence which may not be allowed in any prosecution under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure when such plea was controverted by the complainant before it. 11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. [2008] 13 SCC 678, this Court has made following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: - "17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter. xxx xxx xxx 22. Ordinarily, a defence of an accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm." In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court. 13. Lastly, it is contended on behalf of the respondent no.1 that it was not a case of insufficiency of fund, as such, ingredients of offence punishable under Section 138 of the N.I.Act are not made out. We are not inclined to accept the contention of learned counsel for resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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