TMI Blog2021 (1) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment within 15 days of the receipt of the aforesaid legal demand notice, cause of action under Section 138 NI Act arises. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused-applicant, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint case filed by opposite party no.2 and the statements of the complainant and her witnesses under Sections 200 and 202 Cr.P.C. makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. The prayer for quashing the impugned summoning order dated 13th March, 2019 as well as the entire proceedings of the Complaint Case No. 14 of 2019 under Section 138 of Negotiable Instrument Act, Police Station-Aurai, District-Bhadohi, pending in the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, are refused. - APPLICATION U/S 482 No. 2505 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A mention has been made by Ms. Monika Jaiswal, Advocate holding brief of Smt. Ushma Mishra, learned counsel for the applicant to pass over the case. Learned counsel for the opposite party no.2 states that on 28.06.2019, the matter was referred to Mediation Centre, however, the mediation between the parties has failed as is also clear from the Mediation Report dated 04.12.2019. Learned counsel for the opposite party no.2 further states that he has served a copy of counter affidavit to the learned counsel for the applicant on 09.12.2019. Two weeks' time is granted to the learned counsel for the applicant to file rejoinder affidavit. Put up on 18th September, 2020 in the additional cause list. Interim order, if any, is extended till the next date of listing. It is made clear that on the next date, the case will not be adjourned on any ground. On 3rd November, 2020, following order was passed by this Bench: By order dated 28.06.2019, matter was referred to Mediation Centre. As per the report of Mediation Centre dated 04.12.2019, mediation has failed, after which, matter was listed on 03.09.2020. However, a mention was made on behalf of Smt. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Private Ltd. (for short company ) at the aforesaid place, which was a private limited company. The accused-applicant was a partner of the said firm and company having the post of Director and another partner of the said firm and company was Mr. Phunairam Chandrikaprasad Vishwakarma. The accused-applicant needed money to expand his business. The complainant being family friend was well known to the accused-applicant. The accused-applicant approached the complainant and requested her to invest money in the business of the aforesaid firm/company. The accused-applicant assured the complainant that if she invested ₹ 80,00,000/- (rupees eighty lacs only) in the said firm, he would make her co-partner in the said firm and give her 50% of the profit of the said firm on yearly basis. Apart from the above, the accused-applicant also assured the complainant that he will give her 25% share in the land which was owned by the said firm and 25% profit of every financial year of the said firm. The complainant was also assured by the accused-applicant that entire investment made by the complainant will also be refunded to her without any deduction at the time of her retirement from the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds shares against the investment made by the complainant to the accused-applicant. In consideration of profit, four cheques bearing nos. 041564 dated 7th September, 2018, 041565 dated 14th September, 2018, 041566 dated 21st September, 2018 and 041567 dated 28th September, 2018m amounting to ₹ 80,00,000/- drawn on Dena Bank, Bhosari Branch-Pune, which had been duly signed by the accused-applicant, were issued in favour of the complainant and he also requested the complainant to deposit the same in her bank accounts for withdrawal. It is also alleged that the accused-complainant accepted his legal liability of ₹ 87,00,000/- to complainant towards legal debt and for the said liability, the accused-applicant issued and handed over various cheques amounting to ₹ 87,00,000/- to complainant for discharging his legal liability to the complainant. On 21st October, 2018, the complainant deposited the aforesaid four cheques, which were issued by the accused-applicant, in Kashi Gomti Sanyukt Gramin Bank, Branch-Ugapur, District Bhadohi, wherein the saving bank account of the complainant was maintained, for withdrawal of the money, but same have been dishonoured and returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent application under Section 482 Cr.P.C. has been filed. It is the case of the applicant that complainant/opposite party no.2 has also filed a complaint under Section 138 N.I. Act on 6th December, 2018 at Pune (Maharashtra) in the court of Judicial Magistrate, First Class-Pinpri at Pinpri for dishonour of cheque of the accused-applicant issued in favour of the complainant for a sum of ₹ 7,00,000/- (rupees Seven lacs only). The applicant has also filed a civil suit on 30th April, 2019 in the court of Civil Judge (Senior Division), Pune seeking a direction upon the complainant/opposite party no.2 to pay the amount of ₹ 38 lacs to the accused-applicant at the rate of 18% per annum, a copy of the plaint dated 30th April, 2019 has been enclosed as Annexure-6 to the affidavit accompanying the present application. 6. Following contentions have been raised on behalf of the applicants: I. The applicant had cordial relations with opposite party no.2 and in the guise of investment, she had tried by way of investment to interfere not only in the business of the applicant but also demanded 25% in the land and values of the machinery of M/s. Vishwakarma Dish Ends Wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invested the money in the company, the two parallel proceedings initiated by opposite party no.2 against the applicant in two parallel jurisdiction only substantiate that she is not only trying to threat the applicant but has also tried to extort money from the applicant and misuse the inhuman condition under which the company and proprietor are under going, by making various complaints before the Police and courts of law. (VII) the validity of the legal notice sent by opposite party no.2 to the applicant is also in question as the same does not disclose the amount that has been received by opposite party no.2 prior to the issuance of cheques. (VIII) A legal notice was sent to the applicant by opposite party no.2 through her advocate at his residence at Pune and thereafter she filed a complaint on 6th December, 2018 in the court of Judicial Magistrate, First Class, Pinpri, Maharashtra under Section 138 N.I. Act and subsequent to the same, for the similar contentions, which have been made in the aforesaid complaint, she filed a complaint in the Court of Additional Chief Judicial Magistrate, Bhadohi at Gyanpur (Uttar Pradesh), which is illegal in the eyes of law and the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 80 lacs in the said firm, he will include her as one of the partner in the said firm and give her 50% profit of the said firm on yearly basis. The accused-applicant also promised opposite party no.2 that he will also give 25% share in the land owned by the said firm and 25% share in the value of the machinery of the firm. The accused-applicant also promised opposite party no.2 that he will refund entire investment made by opposite party no.2 without any deduction at the time of her retirement from the said firm. On believing the said promise made by the accused-applicant, opposite party no.2 invested ₹ 80 lacs from September, 2013 to July, 2016 in the firm through accused-applicant. In the meantime, the business of the said firm was hugely affected, hence all the transactions and work of the said firm were stopped thereafter. Seeing the down fall of the said firm, when opposite party no.2 asked the accused-applicant that now her money will be drowned, he assured her not to worry, as he will appoint her as one of the Director of the said company and thereafter on 8th November, 2016, accused-applicant appointed opposite party no.2 as director of the said company. All the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is official address as mentioned above, which was duly received by the accused-applicant on 26th November, 2019, a copy of which has been enclosed as Annexure-C.A.-2 to the counter affidavit filed on behalf of opposite party no.2. A legal notice has also been sent to the accused-applicant at his residential address, which was returned with remark unclaimed. Despite the legal notice having been received by the accused-applicant, he has not made any effort to make payment in respect of the above four dishonored cheques. It is further submitted that the said intention of the accused-applicant is to commit and play a fraud upon opposite party no.2 and indulge into cheating and criminal misappropriation. Thus, the accused-applicant caused wrongful loss to opposite party no.2 and wrong gain to him. Hence the accused-applicant has committed an offence of cheating. He has also failed to make payment of four dishonoured cheques which were issued by him in favour of opposite party no.2 despite legal notice being received by him, which makes out a case for an offence punishable under Section 138 N.I. Act against the accused-applicant, due to which she filed a complaint under Section 138 N.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his promise and the total liability is of ₹ 87,00,000/-. Therefore, opposite party no.2 filed the present complaint case for dishonouring of four cheques amounting to ₹ 80,00,000/- at Bhadohi at Gyanpur and filed another complaint at Pimpri, Pune for dishnouring a cheque amounting to ₹ 7,00,000/-. Both the proceedings are separate proceedings initiated by opposite party no.2 against the accused-applicant for different cause of action. Therefore, the plea of learned counsel for the applicant that opposite party no.2 has initiated res judicta proceedings by means of present complaint filed by opposite no.2 has no legs to stand. (v) The accused-applicant did not give any reply to the legal notice sent by opposite party no.2 for dishonouring of aforesaid four cheques amounting to ₹ 80,00,000/-. He has neither paid the same nor gave any reason for the same. In filing of the present complaint, opposite party no.2 has adopted all procedures known to law. On the cumulative strength of the aforesaid contentions, learned counsel for opposite party no.2 has lastly submitted that the court below has not committed any error in passing the impugned order, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at trial but there is no gain saying that the same favours the complainant and shifts the burden to the drawer of the instrument (in case the same is dishonoured) to prove that the instrument was without any lawful consideration. It is also noteworthy that Section 138 while making dishonour of a cheque an offence punishable with imprisonment and fine also provides for safeguards to protect drawers of such instruments where dishonour may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period. 13. This Court having noticed the facts of the case and the evidence on the record needs to note the legal principles regarding nature of presumptions to be drawn under Section 139 of the Act and the manner in which it can be rebutted by an accused. Section 118 provides for presumptions as to negotiable instruments. The complainant being holder of cheque and the signature appended on the cheque having no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising a probable defence. In paragraph No.12 following has been laid down:- 12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression ''shall presume' cannot be held to be synonymous with ''conclusive proof'. 17. In view of the above, it is clear that the expression shall presume cannot be held to be synonymous with conclusive proof. Referring to definition of words proved and disproved under Section 3 of the Evidence Act, following was laid down by the Apex Court in paragraph No.30 of the aforesaid judgment: 30. Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applying the definition of the word proved in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase until the contrary is proved in Section 118 of the Act and use of the words unless the contrary is proved in Section 139 of the Act read with definitions of may presume and shall p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused had admitted that the signature on the impugned cheque (No. 0886322 dated 8-2- 2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable. 23. After referring to various other judgments of this Court, the Apex Court in that case held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability, which, of course, is in the nature of a rebuttable presumption. In paragraph No.26, following was laid down:- 26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat, (2008) 4 SCC 54 may not be correct. However, this does not in any way cast doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble that in some cases the accused may not need to adduce evidence of his/her own. 25. Now this Court comes on the merits of the cases set up by the learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for opposite party no.2. 26. It is not the case of the applicant that four cheques bearing nos. 041564 dated 7th September, 2018, 041565 dated 14th September, 2018, 041566 dated 21st September, 2018 and 041567 dated 28th September, 2018 amounting to ₹ 80,00,000/- drawn on Dena Bank, Bhosari Branch-Pune have not been given by the accused-applicant to opposite party no.2 and the signatures appended on the aforesaid cheques were not of the accused-applicant. It is also not the case of the applicant that the aforesaid cheques were misplaced or stolen. 27. It is no doubt true that opposite party no.2 invested ₹ 80,00,000/- in the firm/company of the accused-applicant and when a dispute arose between them, for returning the said amount of ₹ 80,00,000/-, accused-applicant had given four cheques bearing nos. 041564 dated 7th September, 2018, 041565 dated 14th September, 2018, 041566 dated 21st September, 2018 and 041567 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Village-Jakkhini, Jakkhini Anish Tehsil, Rajatalab, District-Varanasi and Village-Jaddupur, Police Station-Aurai, District-Bhadohi-221201. It is, thus, clear that the Additional Chief Judicial Magistrate, Bhadohi, Gyanpur has every right to try the aforesaid complaint case as he has jurisdiction to do so. The Apex Court in the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra reported in MANU/SC/0655/2014 has held that place, situs or venue of judicial enquiry and trial of offence must logically be restricted to where the drawee bank is located. The relevant portion whereof is being quoted herein below: To sum up: (i) An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. (ii) Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two or more parties already decided by a court. Perusal of the both the complaint cases filed by opposite party no.2 against the applicant under Section 138 N.I. Act before the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur as well as before the Court of Judicial Magistrate, First Class-Pinpri at Pinpri (Pune), clearly indicates that both are for different dishnouring of cheques and for different amounts i.e. for different cause of action. 30. The next contention of the learned counsel for the applicant that opposite party no.2 has initiated parallel proceedings against the applicant by filing the present complaint case before the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, as he has already initiated proceedings under Section 138 N.I. Act before the Court of Judicial Magistrate, First Class-Pinpri at Pinpri (Pune) has also no leg to stand, as opposite party no.2 has filed the present complaint case under Section 138 N.I. for dishnouring of four cheques bearing nos. 041564 dated 7th September, 2018, 041565 dated 14th September, 2018, 041566 dated 21st September, 2018 and 041567 dated 28th September, 2018 amounting to ₹ 80,00,000/-, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are mala fide based on false and frivolous allegation, this Court finds that the contention made by the applicant's learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the summoning order and the entire proceedings of the aforesaid complaint case at the stage when the Magistrate has merely issued process against the applicant and trial is to yet to come only on the submission made by the learned counsel for the applicant that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law, has elaborately been discussed by the Apex Court in the following judgments: (i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866, (ii) State of Haryana Ors. Versus Ch. Bhajan Lal Ors.;1992 Supp.(1) SCC 335, (iii) State of Bihar Anr. Versus P.P. Sharma Anr.; 1992 Supp (1) SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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