TMI Blog2020 (2) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... e been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. The High Court erred in quashing the criminal case filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fofaliya, Ta. Dabhoi, District Vadodara. In 2010, in order to sell his father s land, Yogeshbhai called up appellant No.3 who is also the maternal uncle of Yogeshbhai and Rajeshbhai. Since appellant No.3 was also planning of buying some agricultural land from the surplus funds which he has received from the sale of his agricultural land, he accepted the proposal of Yogeshbhai. Yogeshbhai who is residing in United Kingdom showed his intention to come to India for executing the sale deed of his lands in favour of appellant No.3 and asked to pay the money to respondent No.2-Mahendrakumar Javaharbhai Patel. Accordingly, appellant No.3 gave ₹ 30,00,000/- each on four days viz. 21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 as part payment, the total amounting to ₹ 1,20,00,000/- to respondent No.2-Mahendrakumar, who issued receipts for the said payments of amount for and on behalf of accused Yogeshbhai. In 2015, accused Yogeshbhai came to India and arranged meeting with appellant No.3. In the meeting, Yogeshbhai informed appellant No.3 that he has already executed a registered Sale Deed No.1229/2013 dated 16.07.2013 in favour of one M/s Brentwood Industries India Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Judicial Magistrate, Vadodara for recovery of ₹ 1,20,00,000/- under Order 37 of CPC. Summary Suit No.105/2015 filed by appellant No.3 was based on the four receipts issued by respondent No.2-Mahendrakumar. The Court in that case has issued summons for appearance against Yogeshbhai and Mahendrakumar which has been served on 01.11.2015. According to the respondents, they came to know about those four receipts only after they have been served with summons in the said suit. Alleging that the appellants have forged and fabricated the four receipts, respondent No.2-Mahendrakumar has filed the complaint for cheating and forgery against the appellants. Based on the said complaint, FIR No.I-194/2016 was registered against the appellants under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. Respondent No.2-Mahendrakumar has alleged that the appellants joined together and prepared fabricated receipts of ₹ 1,20,00,000/- bearing forged signature of respondent No.2 and produced these forged receipts as true. 9. In the FIR, it was averred that Yogeshbhai, who is residing in United Kingdom had executed a power of attorney dated 14.03.2013 in favour of Mahendrakumar for admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipts were not written by him i.e. respondent No.2-Mahendrakumar Javaharbhai. 11. Vide the impugned judgment dated 14.12.2018, the High Court dismissed Criminal Misc. Application No.2735/2017 and declined to quash the FIR No.I-194/2016. The High Court held that on the basis of four receipts allegedly issued by Mahendrakumar, the third appellant-Hasmukhbhai has filed the Summary Suit No.105/2015 for recovery of ₹ 1,20,00,000/-. The High Court referred to the hand-writing expert s opinion who has opined that the signatures found in the receipts do not tally with the signature of respondent No.2-Mahendrakumar. The High Court held that looking into the allegations and the facts, prima facie case of forgery and cheating are made out against the appellants and accordingly, declined to quash the FIR No.I-194/2016 and dismissed Criminal Misc. Application No.2735/2017. 12. On the basis of order passed in Criminal Misc. Application No.2735/2017, the Criminal Misc. Application No.24588/2017 filed by Yogeshbhai was allowed and the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act was quashed. The High Court held that based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cheques bearing Nos.8108 and 8109 for ₹ 30,00,000/- each from his NRO Account and after issuing the cheques, Yogeshbhai realised that there was no funds in the said account and he asked appellant No.3 to return the above cheques and collect new cheques of another account. It was submitted that thereafter Yogeshbhai issued new cheques of NRE Account bearing Nos.20801 and 20802 of ₹ 30,00,000/- each and at that time, appellant No.3 had told that he had not brought the old cheques with him and will return the old cheques in a day or two but never returned the cheques. Learned Senior counsel submitted that Yogeshbhai got suspicious and on making enquiry, he found that appellants No.2 and 3 were not intending to purchase any lands and thus, he has instructed the Bank to stop payment for all the four cheques. Learned Senior counsel further submitted that appellants made four forged receipts of ₹ 30,00,000/- each by forging the signatures of respondent No.2-Mahendrakumar and the handwriting expert opined that four receipts relied upon by appellant No.3-Hasmukhbhai have not been signed by respondent No.2- Mahendrakumar and on the basis of FSL report, FIR No.I-194/2016 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0566 ₹ 30,00,000/- 30.10.2015 4. 30.10.2015 20802 NRE Account No.085401000566 ₹ 30,00,000/- 30.10.2015 Total ₹ 1,20,00,000/- On presentation, the above cheques were dishonoured on the ground Payment stopped by the Drawer . After issuing the legal notice, appellant No.3-Hasmukhbhai filed criminal case in C.C.No.367/2016 on 08.12.2015 pertaining to two cheques bearing Nos.20801 and 20802. It was only thereafter, respondent No.2- Mahendrakumar had filed the criminal complaint dated 20.03.2016 and also filed another criminal complaint dated 14.04.2016 against appellant No.1-Rajeshbhai and appellant No.2-Vipulkumar. Since the police had not registered the FIR, respondent No.2 filed SCRA No.5945/2016 and SCRA No.6349/2016 before the High Court for seeking directions for lodging FIR. The High Court vide orders dated 04.10.2016 and 06.09.2016 disposed of those petitions directing the police to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merel ..... 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