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TMI Blog2021 (5) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused person made his signature along with his wife Urmilaben Ganeshbhai Vankar, as a partner of Dev Sales Corporation and such agreement was executed before the Notary namely S.N. Gosai on 04.12.2019. As part payment of the lease agreement, two cheques were issued by the accused in favour of the complainant drawn on Bank of Baroda, Halol Branch under the name of Urmi Enterprise. It was not shown in the cheques that Urmi Enterprise is a proprietorship firm or partnership firm. That, the accused, inspite of continuing the lease agreement for the period stipulated in the agreement, handed over the possession of the Kvory to the complainant on 27th February 2020. That, the complainant was compelled to pay the electricity bill for the period of lease agreement. That, the complainant had also instructed in connection with the reply of the notice dated 06.06.2020 that on failure to deposit the agreed amount of rent as per the lease agreement with the complainant, he would compel to deposit the cheque with the bank authority issued by the accused. Thereafter, the complainant deposited the cheque No. 000025 dated 10.08.2020 of Bank of Baroda, Halol Branch for the amount of Rs. 6 lacs in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed by the applicant against the respondent no. 2 and his son-in-law. That, the complainant has failed to prove that how the applicant has not paid the rent of Kvory plant. That, the complainant has issued legal demand notice on 25th September 2020 wherein it is stated that the applicant had handed over the possession of Kvory plant on 27th February 2020 ie. Immediately after two months from the date of execution of rent agreement then there is no question of non payment of rent, and therefore, the respondent no. 2 has malafidely deposited the cheque no. 000025, which was given only for security purpose. That, the applicant has also specifically mentioned in the reply of notice dated 5th October 2020 that from 04.12.2019, instead of earning profit, the applicant had to incurred huge expenses in repairing and maintaining the parts and machinery of the Kvory plant and had incurred huge loss and therefore, he is entitled to recover the amount from the complainant. That, the applicant has inquired about the land, on which the respondent no. 2 has carried out his Kvory plant and came to know that this land belongs to the government and respondent no. 2 had not got N.A. permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Negotiable Instruments Act, 1881. Hon'ble Apex Court has referred the case of "Indus Airways Private Limited versus Magnum Aviation Private Limited reported in 2014 12 SCC 539, wherein a contrary view was taken in the similar facts of the case holding that while the purchaser may be liable for breach of the contract, when a contract provides that the purchaser has to pay in advance and cheque towards advance payment is dishonoured, it will not give rise to criminal liability under Section 138 of the Act. Issuance of cheque towards advance payment could not be considered as discharge of any subsisting liability. 8. The Hon'ble Supreme Court in case of Sampelly Satyanarayana Rao (Supra) has observed as under: 10. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression "for discharge of any debt or other liability" occurring in Section 138 of the Act. We are of the view that the question whether a postdated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. 14. In Balaji Seafoods (supra), the High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also loan was advanced. It was noticed specifically therein - as was the admitted case of the parties - that the cheque was issued as "security" for the advance and was not intended to be in discharge of the liability, as in the present case. 15. In HMT Watches Ltd. versus M.A. Abida, relied upon on behalf of the respondent, this Court dealt with the contention that the proceedings under Section 138 were liable to be quashed as the cheques were given as "security" as per defence of the accused. Negativing the contention, this Court held:- "10. Having heard the learned counsel for the parties, we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable." 9. This court in case of "Deepak Shyamsunder Agrawal v. State of Gujarat and another" reported in 2017 Law Suit (Guj) 343, in para 15, has held as under: "Considering the above stated legal settled principles of law, while dealing with a quashing petition, the Court has ordinarily to proceed with all the averments in the complaint, defence of the accused cannot be considered at this stage. The Court considering the prayer for quashing, does not adjudicate upon the disputed questions of fact. Therefore, the question h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court in case of "Sunilbhai Dhirubhai Patel and another v. State of Gujarat and others" reported in 2017 Law Suit (Guj.) 1732 has observed as under: 11. In the present case, as stated herein above, it is an admitted position that the accused were aware that they are paying the post-dated cheques to the complainant and those amounts which he had already paid to the original land owner, which in my opinion, would be debt/liability in praesenti. The petitioner firm was aware that if the cheques are dishonoured, a right was given to the holder in due course to take all legal recourses available under the various proceedings. Since the complainant is a Banakhat holder would be entitled to file civil suit for specific performance/damages etc., that does not mean that he cannot file any complaint under Section 138 of the Act, when the case would fall under Explanation to Section 138 of the Act. Even otherwise, the Hon'ble Supreme Court in the case of HMT Watches Limited v. M.A. Abida and another, (2015) 11 SCC 776 while dealing with the provisions of Sections 139 and 140, has held that presumption would be in favour of holder and the defences which have been raised in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated civil proceedings. This shows that there is prima facie liability of payment on the part of the applicant. In view of the material placed in the matter, it clearly appears that this is not a fit case wherein inherent powers under Section 482 of the Code of Criminal Procedure could be exercised. 13. Considering the facts of the present case, question of snatching possession of the Kvory plant from the applicant by threatening and beating him on 27.02.2020 by the complainant and the contents of the police complaint filed by the applicant-accused against the complainant and his son-in-law are disputed question of facts and they can only be considered after recording evidence by the prosecution/accused before the learned Trial court. Non producing the lease agreement executed between the parties and no legal debt of the complainant would be also a question of facts, which can be considered by the trial court that after recording evidence and examination/cross examination of the complainant. Another question of failing to prove by the complainant not making payment of rent of Kvory plant by the accused would be covered as disputed question of facts which can only be proved or disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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