TMI Blog2020 (11) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... he onus to prove that the cheque was not in discharge of any debt or liability would still remain on the accused which is to be discharged by adducing evidence. There are no merit in the contentions raised by the learned counsel for the petitioner. It is for the petitioner to establish in the trial that the cheque in question was not given towards discharge of any debt or liability - petition dismissed. - CRL.M.C. 2149/2019 - - - Dated:- 9-11-2020 - HON'BLE MR. JUSTICE MANOJ KUMAR OHRI Petitioner Through: Ms. Pankhuri, Mr. Mayank Kshirsagar, Mr. Parthasarathy Bose, Mohammad Arif and Mr. Akhilesh Yadav, Advocates. Respondent Through: None. MANOJ KUMAR OHRI, J. (ORAL) CRL. M.A. 15326/2020 (Exemption) 1. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l demand notice dated 29.06.18 was issued to the revisionist which was sent through registered post but it was not replied nor any payment was made and hence, the complaint. 3. Ms. Pankhuri, learned counsel for the petitioner submitted that at the time of entering into the Agreement/Distributor Profile Form, the cheque in question was given as security and not towards the discharge of any debt or liability. In this regard, learned counsel referred to Column No. 22 of the aforementioned Agreement where the details of the cheque in question were given. It is thus contended that as the cheque was given only towards the security and not towards discharge of any debt or liability, no offence under Section 138 of the Negotiable Instruments A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the petitioner fairly did not deny the petitioner s signatures on the cheque in question however, it was submitted that at the time of handing over, a blank cheque was given. 6. After going through the impugned order and the contentions raised by the learned counsel for the petitioner, it is apparent that disputed questions of facts are raised which require adjudication in the trial. In S. Krishnamoorthy v. Chellammal reported as (2015) 14 SCC 559 , the Supreme Court held as follows :- 5. The above defence of the respondent (the accused) before the High Court, in the petition filed under Section 482 of the Code, is nothing but absolutely factual in nature, which is neither admitted by the complainant, nor apparent on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the complainant. That is not the ground on which powers under Section 482 of the Code can be exercised by the High Court. 7. The Supreme Court in Rajeshbhai Muljibhai Patel Others v. State of Gujarat Anr. reported as (2020) 3 SCC 794 , held as follows :- 22 .When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act ought not to have been quashed by the High Court by taking recourse to Section 482 CrPC. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the NI Act on the legal issues like limitation, etc. criminal complaint filed under Section 138 of the NI Act against Yogeshbhai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorised by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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