TMI Blog2014 (7) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... n two ways, presumption becomes vulnerable to an attack by other side. One, fact may makes way for the accused and special facts or peculiar fact of the case may hold back the operation of presumption or in peculiar facts of the case, the Court may look into the material brought on record by the accused in support of his say that cheque is not issued in discharge of any debt or liability. In order to prevent injustice, the Court may look into such material - submission about rigours and all pervasive effect of presumption read with limitation of Court under Sec. 482 of Cr.P.C. is not possible to accept in the circumstances of the case. Petition allowed. - Misc. Criminal Application Nos. 14179 of 2009 and 20209 of 2013 (in Misc. Cri. A. No. 14179 of 2009) and Misc. Cri. A. No. 14180 of 2009, Misc. Criminal Appli. No. 20210 of 2013 (in Misc. Cri. A. No. 14180 of 2009) - - - Dated:- 8-7-2014 - R.D. Kothari, J. For the Appellant : R.S. Sanjanwala, Senior Advocate and Digant M. Popat. For the Respondents : C.M. Shah, A.P.P. and K.P. Rawal, A.P.P. JUDGMENT R.D. Kothari, J. Common oral judgment in Misc. Criminal Application No. 14179 of 2009 and Misc. Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 482 of Cr.P.C. The case against the present petitioner can be considered at the time of trial. Learned Advocate has also drawn attention to Shree Meenakshisunderam Textile Ltd. v. State of Gujarat, reported in 2012 (0) GLHEL-HC 226625, Rangappa v. Sri Mohan, reported in 2010 (0) GLHEL-SC 48349 and M/s. M.M.T.C. Limited v. M/s. Medchl Chemicals and Pharma (P) Ltd., reported in AIR 2002 SC 182. 5. Relevant materials on record are thus: 5-8-2008 - Date of cheque 7-10-2008 - Date of presenting cheque before the bank 9-8-2008 - Letter by the petitioner to the complainant calling upon later to hand over all the papers of business and financial affairs. She also says to return the blank cheques and blank papers. 26-8-2008 - R.P.A.D. notice by the complainant to the petitioner and other brother of the complainant wherein the complainant asked for dissolution for II.U.F. properties. 30-8-2008 - Notice by the complainant to the petitioner and other brother calling upon petitioner to make payment for rendering personal and professional service by him including protecting the properties. The complainant demands ₹ 14 crores. 22-9-2008 - Reply of complainant's no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l on record i.e. R.P.A.D. notice given by the complainant/respondent No. 2, letters of the petitioner, - if read and considered together, - it would appear that case of complainant is difficult to accept. 8. Now, the case may be considered that whether complainant/respondent No. 2 can be said to be holder of a cheque that is received by him in discharge of any debt or other liability as envisaged under Sec. 139 of the Negotiable Instruments Act. In this regard learned Advocate for the complainant has drawn attention to the judgment of this Court in Shree Meenakshisunderam Textile Ltd. v. State of Gujarat (supra). Attention was drawn to this observation: ...........Whether at the time of depositing of the cheque there was legally enforceable debt or not is a question which is required to be considered at the time of trial on appreciation of evidence. As stated above, as such there is presumption as provided under Sec. 139 read with Sec. 118 of the Negotiable Instruments Act, that the cheque has been issued for legally enforceable debt, however, the same is rebuttable. Therefore, the submission on behalf of the petitioners to quash and set aside the impugned complaint on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , improbable, mala fide and no prudent person can ever reach a just conclusion that there is sufficient ground to proceed against the accused. In the present case, the petitioner has satisfactorily established the basic infirmity in the complaint and its maintainability. It is obligatory on the part of the accused to rebut the legal presumption but perusal of statement of Mr. C.L. Verma and me stand taken by the associates of Bharat Vijay Mills/Continental Textile Mills in civil litigation including Mr. C.L. Verma referred hereinabove, provides sufficient rebuttal at this stage. Normally, this Court is supposed to read the averments made in the complaint and at the initial stage of the proceedings, the High Court is not justified in entertaining and accepting the plea that mere was no debt or liability. Defence plea cannot be entertained in quashing proceedings. But in the cases where the petitioner is able to show to the Court that there was no existing debt or liability at the time of presentation of the cheque for encashment on the basis of the conduct of the complainant or admissions made by the complainant that may be in other legal proceedings, then in such cases, the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions arising under Secs. 118 and 139 of the Act. 13. Learned Advocate for the complainant has tried to distinguish the case of M/s. Kumar Export (supra) urging that it was not at the initial stage of the proceedings and the proceeding had reached before the Hon'ble Supreme Court at the end of trial. Clear holding of the Hon'ble Supreme Court as to how to rebut the presumption under Sec. 139 of the Negotiable Instruments Act cannot be distinguished on the ground that proceeding reached before the Court via Appeal. 14. M/s. M.M.T.C. Ltd. case (supra) upon which the strong reliance placed by the learned Advocate for the complainant/respondent No. 2 cannot help the respondent in the facts of the present case. In that case, it would appear that cheques were issued pursuant to commercial transactions. Memorandum of Understanding (M.O.U.) was entered into between the appellant and respondent. In pursuant to that, two cheques were issued. After issuance of cheques, appellant had intimated the bank for - stop payment . Accordingly, cheques were returned and criminal complaint was filed. It appears that therein plea was raised that complaint is not filed by the authorised pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the complainant, he asserts that his mother has a coaching from French Teacher in her young age. She places signature in English. Her letters give impression that she runs business. She says that at the relevant time, the complainant was looking after her business and financial affairs. These aspect are relevant and possible to read in favour of the complainant. But that does not carry the case of the complainant much further. From this material, it is not possible to infer that mother would issue the cheque first of ₹ 2 crores and then another of ₹ 3 crores in favour of her son. Circumstances of the case suggest that signed blank cheque may have been in possession of the complainant. Further say of the complainant in his notice, preceding the presentation of cheque in the bank is odd and inconsistent. Complainant is not specific or clear that for what the petitioner has issued cheque. In former notice, he claims dissolution of H.U.F. properties and in later notice issued after four days, he demands payment for rendering professional and personal services. Then, roughly mixture of above two grounds, one find in complaint under Sec. 138 of the Act. In the complaint, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court and quash the proceedings in exercise the powers under Sec. 482 of Cr.P.C. As observed above, it is not possible to say that cheques in the present case is issued in discharge of any liability or debt. 19. Once it is conceded that facts and circumstance of the case dominates and play decisive role, then it would not be difficult to accept the myth of might of presumption under Sec. 139 of the Act. At least in two ways, presumption becomes vulnerable to an attack by other side. One, fact may makes way for the accused and special facts or peculiar fact of the case may hold back the operation of presumption or in peculiar facts of the case, the Court may look into the material brought on record by the accused in support of his say that cheque is not issued in discharge of any debt or liability. In order to prevent injustice, the Court may look into such material. In short, submission about rigours and all pervasive effect of presumption read with limitation of Court under Sec. 482 of Cr.P.C. is not possible to accept in the circumstances of the case. In view of above, petitions succeeds. The criminal complaints pending before Metropolitan Magistrate, Ahmedabad being Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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