TMI Blog2021 (7) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. The Court notices that there is no disputes with regard to the signature on the cheuqe and her defence is that the brother-in-law had obtained her signature under the pretext that for emergency purpose this would be required for the use of the cheque in the business. There is an initial admission of the cheque, the presumption under Section 139 of the N.I.Act would come into play. It is also not out of place to make a mention that there is no reply to the notice issued by the complainant. With the elements referred to under the N.I.Act existing on record, it is for the trial Court thereafter to appreciate at an appropriate stage as to whether the defence put forth by the accused are worth accepting and would lead to the stage where this rebuttal can be said to have succeeded. The present complainant is a friend of the brother in law, who has misused such cheque - Private complaint appears to have been filed before the Court of learned Judicial Magistrate First Class, Indore, which has been dismissed. The allegation with regard to the disco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner No.2 is the wife of Mr.Trilok Singh Rajpal, whereas Mr. Rajendra Singh Rajpal is the younger brother of the husband of the petitioner No.2 and thus brother-in-law of hers. Petitioner No.2 married to Shri Trilok Singh Rajpal in the year 1972. Her husband was working as Assistant Engineer in Madhya Pradesh Electricity Board ( the MPEB for short) and Rajendra Singh Rajpal was his younger brother. He was serving as a clerk in the Punjab National Bank and was posted at Bilaspur and thereafter to Jabalpur. From 1982, he lived with the family of the petitioner No.2. He got married in June, 1984 when the husband of the petitioner No.2. He was serving as Divisional Engineer in the MPEB at Jabalpur. 1.3 The husband of the petitioner No.2 helped his brother to start a new firm viz., M/s. Balaji Fasteners in Indore, where the youngest brother-in-law of the petitioner became the partner and Rajendra Singh joined as incharge when he shifted to Indore after leaving Bank s employment at Jabalpur. 1.4 In the year 1990, Darshan Singh retired from the firm and when the partition took place, M/s. Balaji Fasteners was taken over by Rajendra Singh and petitioner No.2 became the partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings, but because of the mediation of elderly members of the family, it did not result into that. 1.10 In the month of June, 2004, Rajendra Singh opened a Bank Account fraudulently in the name of petitioner No.2 in the State Bank of Indore, Khatiwala Tank Branch and deposited a Demand Draft of ₹ 3.95 Lakh, which was in favour of the petitioner No.2, he withdrew the amount and the account was closed. 2. According to the petitioner No.2, her husband met with the car accident and the insurance company had sent an account payee cheque of ₹ 21,836/- in her husband s name, which was also illegally diverted by his brother. Upon knowing this, Trilok Singh had filed an FIR against Rajendra Singh his wife-Indrajit Kaur and the Bank Clerk Mr.Ravi Manhotra on 12.09.2006. 2.1 As a counter blast, the signed cheques of petitioner No.2 have been misused and without any lawful reasons, the complaint under the N.I. Act had been initiated. 3. This Court on 04.07.2012 issued the notice to the respondents and ad-interim relief granted in terms of para 28(B). This relief has been continued as on 05.05.2018 and the Court had continued the same till final disposal of this petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of this FIR. It is the dispute between the brothers, which culminated into this malicious prosecution on the part of the brother, who has made the present complaint a scapegoat. It is further his say that there is no such transport company as Laxmi Transport. The lorry receipt has also been tampered, the notice of dishonour of the cheque has been issued by the lawyer of Indore. For filing this complaint, the bogus lorry receipt and bogus transport company have been forged. It s courier receipt could not have been in possession of the complainant. The reply under the RTI Act is received from the check post at Pitol, District Jhabua, that no such goods have been received. There is a clear answer of the part of check post at Pitol that from 16.12.2006 to 25.02.2007 in the lorry, there was no such goods received from M/s. Deep Plastics. Issuance of Form No.49 also has not happened and the VAT provision also needed that invoice was to be stamped which is absent in the instant case and the reply of the authority under the RTI was quite glaring. The factory of the petitioner had been closed at Sector 21-B and the electricity connection as per the communication dated 25.01.2007 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Negotiable Instruments Act or the complaint petition in effect and substance should be permitted to be raised only by way of defence. What has failed to attract the attention of the High Court was that maintainability of a criminal proceeding like the present one should not be determined only upon raising a presumption in terms of Section 139 of the Negotiable Instruments Act, it being a rebuttable one. 7. Learned advocate, Mr.Rakesh Sharma appearing for respondent No.1 has extensively argued urging that the cheque was issued from the Bank account which has been maintained by the petitioner. There is a presumption available under Section 139 of the N.I.Act and no reply to the notice has been given. All the elements which are necessary for attracting the provisions of N.I.Act are existing on the record. He emphatically urged that this is not the stage of appreciation. A private complaints have also been filed by the petitioners, which have also not been entertained by the learned Judicial Magistrate First Class, Indore and this is not the stage for the Court to enter into the disputed question of fact. He has sought to rely on the following authorities: (1) Sampelly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly Satyanarayana Rao vs Indian Renewable Energy Development Agency Limited the question for consideration was whether in the given set of facts, the dishonour of a post-dated cheque given for repayment of loan, the installment described as a security in the loan agreement is covered by Section 138 of the N.I.Act or not. The company there was engaged in the field of power generation, respondent was engaged in development of renewable energy and is a Government of India enterprise. Vide the loan agreement, the respondent agreed to advance loan of ₹ 11.50 crore for setting up of 4.00 MW Biomass based Power Project in the State of Andhra Pradesh. The agreement recorded that post-dated cheques towards payment of installment of loan (principal and interest) were given by way of security. The cheques carried different dates depending on the dates when the installments were due and upon dishonour, the complaints came to be filed by the respondent in the court of learned Magistrate at New Delhi. 9.3 The appellant approached the High Court for quashing of the complaints arising out of 18 cheques of the value of about ₹ 10.3 crore with the contention that they were given by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. In Balaji Seafood Exports (India) Ltd. Vs. Mac Industries Ltd., the Madras 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. In HMT Watches Ltd. versus M.A. Abida, reliance 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. Negatiying the said contention, the Apex Court held :- 10. Having heard the learned counsel for the parties, we are of the view that the accused (Respondent 1) challenged the proceedings of criminal complaint cases before the High Court, taking fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9.8 In case of Rallis India Ltd. v. Poduru Vidya Bhushan, reported in, (2011) 13 SCC 88 , this Court expressed its views on this point as under: 12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm. We a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterfere with the proceeding which is otherwise genuine. The Courts cannot lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable. 9.10 The reference of Rallis India Ltd. vs. Poduru Vidya Bhusan Ors is for the purpose where it is held that the High Court could not have discharged the respondents of the said liability at the threshold. Unless parties are given opportunity to lead evidence, as there are may disputed questions of facts existed. 9.11 The reference is also made of Rangappa versus Sri Mohan where the Apex Court held that once there is an issuance of the cheque under signature thereon is admitted presumption of a legally enforceable debt in favour of the holder of the cheque arises in such case. It is for the accused to rebut the said presumption though accused need not adduce his own evidence and can rely upon the material submitted by the complainant, but the mere statement of the accused; however, may not be sufficient to rebut the said presumption. 9.12 In case of Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, reported in (2005) 1 SCC 122 the Apex Court held and observed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. 9.13 Apt would be to refer to the decision rendered in case of SATISH MENON vs STATE OF GUJARAT 1, reported in 2017 (4) GLR 3385, where the Court concluded thus: 7. Considering the facts of the case, submissions made by learned advocates of the respective parties and documentary evidence produced on the record by either side, it is a undisputed fact that the petitioner was appointed as Executive Director (Sales) of Wetell Everest Cap Solutions Pvt. Limited at Hyderabad. There is some difference in the appointment date of the petitioner as Executive Director (Sales) viz., such as 16th April, 2009 and 1st August, 2009 shown in the appointment letter as well as in record of the Ministry of Corporate Affairs, respectively. It is a submission of the petitioner that he has resigned from the Company vide letter dated 4th March, 2010 from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer of the petitioner. Thus, this factual aspect would not be decided or cannot be decided by the High Court in an application filed under section 482 of the Code of Criminal Procedure and it can only be decided by the trial court by recording necessary evidence from the either sides. In case of Mother Care(India) Ltd v/s. Prof. Ramaswamy P. Aiyar (Supra), it is held that merely because the Company has not filed Form No.32, as required to be filed and same is not registered with the Registrar of Companies, it cannot be said that the applicant continues to be the Director of the company under liquidation. 8. From the other side, learned advocate Mr. PV Patadiya for the respondent no.2 has relied a decision in case of Malwa Cotton and Spinning Mills Limited V/s. Virsa Singh Sidhu and Others (Supra), in which also, the respondent no.1 therein had raised a ground that he had resigned from the Directorship before cheques were issued and the petition was allowed on the ground that no specific allegation against other accused person was made. It was held by the Apex Court that the fact of resignation and its correctness have been established in the trial Court, and therefore, the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence on the part of the petitioner-accused , where the rebuttal will be necessary after the initial presumption, even if, the accused as per the decision of Rangappa versus Sri Mohan chooses to rely upon the documents sought to be relied upon by the complainant and also here is not the stage for this Court to enter into various details which have been emphasised upon to exercise its power under Section 482 of the Code of Criminal Procedure. 12. The Court notices that there is no disputes with regard to the signature on the cheuqe and her defence is that the brother-in-law had obtained her signature under the pretext that for emergency purpose this would be required for the use of the cheque in the business. There is an initial admission of the cheque, the presumption under Section 139 of the N.I.Act would come into play. It is also not out of place to make a mention that there is no reply to the notice issued by the complainant. With the elements referred to under the N.I.Act existing on record, it is for the trial Court thereafter to appreciate at an appropriate stage as to whether the defence put forth by the accused are worth accepting and would lead to the stage where this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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