TMI Blog2012 (3) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate, Ahmedabad for the offences under Section 138 r/w Section 141 of the Negotiable Instruments Act for dishonour of the cheque issued by the applicant No. 1 herein-original accused No. 1 and signed by the applicant No. 2 herein-original accused No. 2 dated 17.1.2009. That in the said complaint, it is alleged and averred that the accused No. 1 was purchasing raw cotton from the complainant since long and the complainant was maintaining the account for sale of goods and receipt of payment from accused No. 1 from time to time in books of account maintained by the complainant. It is averred and alleged in the said complaint that balance outstanding and due by accused No. 1 to complainant as per the account of accused No. 1 in the books of complainant as on 1.4.2005 was ₹ 8,30,46,223/-. That the accused No. 1 agreed to pay interest @18% on the balance outstanding (with interest thereon) and accused No. 2 issued a cheque No. 446270 drawn on Vijiya Bank, HBR Layout, Kalyannagar, Bangalore on 1.4.2005 with authority to complainant to fill in rest of the columns of the said cheque for the amount that may be due and present it for payment at future date. That thereafter, claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Sasseriyil Joseph vs. Devassia reported in 2001 CRI.L.J 24 (which is reported to have been confirmed by the Hon'ble Supreme Court) as well as decision of the Andhra Pradesh High Court in the case of Girdhari Lal Rathi vs. P. T. V. Ramanujachari Anr reported in 1997(2) Crimes 658 as well as unreported decisions of the Delhi High Court in CRL. M.C Nos. 1869 of 2007 6479 of 2007. 3.0. Shri P. M. Thakkar, learned Senior Advocate for the applicants has further submitted that as observed by the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat vs. Dattatraya reported in (2008) 4 SCC 54, more particularly para 21 22, Section 139 of the Negotiable Instruments Act merely raises a presumption in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability, however existing of legally recoverable debt is not a matter of presumption under Section 139 of the N.I. Act. Therefore, it is submitted that at the relevant time when the cheque dated 17.1.2009 was deposited in the Bank, there was no legal enforceable debt and therefore, it cannot be said that for dishonour of the said cheque, the applicants have commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.3. Application is opposed by respondent No. 2-original complainant and affidavit in reply is filed by the original complainant opposing the present application. However, at the time of final hearing of the present application, learned advocate for the respondent No. 2-original complainant has chosen to remain absent. From the affidavit in reply, it appears that the complainant has relied upon the decision of the Hon'ble Supreme Court in the case of A.V. Murthy vs. V. S. Nagabasvanna reported in AIR 2002 SC 952 submitting that as held by the Hon'ble Supreme Court in the said decision complaint alleging offence of dishonour of a cheque drawn to pay back the amount advanced 4 years back cannot be dismissed at the threshold taking it that debt is not legally enforceable. It is submitted that as held by the Hon'ble Supreme Court in the said decision that payee may prove validity of such debt with help of entry in balance sheet, sales tax returns and income tax returns. In the affidavit in reply, the complainant has also relied upon the decisions of the Hon'ble Supreme Court in the case of Anil Kumar Sawhney vs. Gulshan Rai reported in (1993) 4 SCC 424 as well as in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as decision of the Karnataka High Court in the case reported in AIR 2000 Karnatak 169 by submitting that in the aforesaid decision, it is held that the holder in due course of the cheque and instrument has an implied authority to filling the blanks in the cheque/ instrument. By making above submissions and relying upon the above decisions, it is requested to dismiss the present application. 5.1. Heard the learned advocates for the respective parties at length. The applicants have prayed to quash and set aside the impugned complaint filed by respondent No. 2 herein against them for the offences under Sections 138 r/w 141 of the N.I. Act and mainly on the ground that at the relevant time when the cheque was deposited there was no legal enforceable debt or liability, as according to the complainant himself the cheque was blank signed cheque and was given to the complainant in the year 2005. However, it is required to be noted that in the complaint there are specific averments and allegation that in the books of account a sum of ₹ 8,30,46,223/- was due and payable by the accused No. 1 as on 1.4.2005 and that the accused No. 1 agreed to pay interest at the rate of 18% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1. Even otherwise, considering the presumption under Section 139 of the N.I. Act there is a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or other liability. Whether such a debt or other liability was legally enforceable or not is a question which is required to be considered at the time of trial on rebutting such presumption. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat (supra) is concerned, it is required to be noted that before the Hon'ble Supreme Court the case was after the trial and the entire evidence was before the Court. Under the circumstance, the decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat (supra) would not be of any assistance to the applicants at this stage while considering the application under Section 482 of the Code of Criminal Procedure when the evidence is yet to be led. Similarly, decision of the Kerala High Court in the case of Sasseiyil Joseph (supra) which is reported to be confirmed by the Hon'ble Supreme Court also would not be of any assistance to the applicants at this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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