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TMI Blog2014 (7) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Giving intimation by the bank to the complainant that account holder i.e. present petitioner has given instruction of - "stop payment". Complainant had issued notice to the petitioner and has filed a criminal case against his own mother. 2. Heard the learned Advocate for the parties. 3. Learned Senior Advocate Mr. Sanjanwala has submitted that case of the complainant on the face of it is unacceptable. In his opinion, say of the complainant is absurd. Main submission are two-folds; firstly, that cheque is not issued by the petitioner in discharging of any liability or debt, hence, no presumption could be raised under Sec. 139 of the Act and secondly, on merits also, if one reads closely material on record, it would appear that say of the complainant is nothing but false. In the circumstances of the present case, it was submitted that this Court should quash the proceeding in exercise of inherent power. 4. On the other hand, learned Advocate for the complainant vehemently opposed the present petition. In support of the submissions, learned Advocate for the complainant has drawn attention to complaint filed before the Court of learned Metropolitan Magistrate, Ahmedabad. It is fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-2008. In between notice/letter exchanges take place between the parties. There is R.P.A.D. notice given by the complainant to the petitioner wherein he has demanded dissolution of H.U.F. This notice is dated 26-8-2008. Therein, the complainant does not refer or even mention about issuance of cheque by the petitioner on 5-8-2008. It is incredible. It is logical and natural to mention in the notice about issuance of the cheques by the petitioner. Then, after three days i.e. on 30-8-2008, the respondent No. 2 gives another notice to the present petitioner and others. In the second notice, now complainant calls upon the mother and others to make payment for rendering personal and professional services by him and he also demands fees for protecting the properties worth of Rs. 100 crores. In the said notice also, the complainant/respondent No. 2 does not make any reference about the issuance of cheque dated 5-8-2008. Bare reading of notice gives impression that person like respondent No. 2 who is so conscious about his share and "rights" would not miss to mention and refer cheque said to have issued by the petitioner to the complainant. Conduct of respondent No. 2/complainant provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability. (Emphasis original) It is next held as follows: "This is a special provision incorporated in the Negotiable Instrument Act. It is necessary to allege specifically in the complaint that there was a subsisting liability and an enforceable debt and to discharge the same, the cheques were issued. But, we do not find any such allegation at all. The absence of such vital allegation, considerably impairs the maintainability." (Emphasis original) 10. On the other hand, learned Advocate Mr. Sanjanwala has drawn attention to Bharatbhai K. Patel v. C.L. Verma (Since Decd.) through P.O.A. Surjit Singh Macker, reported in 2002 (2) GLR 1713. Attention was drawn to Para 9. Learned Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structions by virtue of Sec. 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course, this is a rebuttable presumption. The accused can thus show that the 'stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an offence under Sec. 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus, a Court cannot quash a complaint on this ground." (Para 18) (Emphasis original) 15. Learned Advocate for the complainant has submitted that like present case therein also, party had issued instructions for stop payment and plea of absence of existing liability or debt was also raised. Therein, it was clearly held by the Hon'ble Supreme Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant to instruct the Advocate to issue notice under Sec. 138 of the amended Negotiable Instrument Act to the opposite party to pay............" In the next paragraph, Shashikumar, complainant says; "..........The height of force applied on mother by these two brothers and sisters is put in mother's own words, for the first time on 23-11-2008, in the form of her remarks : 1. "That I have given birth to you and incurred all expenses in your upbringing. How do you compensate me?............" The complainant in the end prays for issuance of process against the applicant and also adds that applicant be asked to remain present during the trial and co-operate the Hon'ble Court. He cites bank officials as his witness. Principal villain in the way of the complainant is relationship between the parties. For this reason, M/s. M.M.T.C. Limited case (supra) do not help the complainant. 17. In Shree Meenakshisunderam Textile Ltd. v. State of Gujarat (supra), upon which the complainant has placed reliance, cheques were issued pursuant to business and commercial transactions, that has taken place between the parties. Accused used to purchase raw cotton from the complainant since l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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