TMI Blog2021 (11) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... in rarest of rare cases, though the meaning of rarest of rare cases is not similar as of Section 302 of IPC. The power of quashing is to be exercised sparingly. Quashing is not to be done mechanically or in a routine manner. The contention raised by learned counsel for the petitioner that account was not maintained by the petitioner is raised on the foundation that account was opened at the behest of respondent No.2. She handed over blank signed cheques to him which were misused. The account was being operated in her absence by the respondent No.2. Expounding on the issue raised would affect the trial in complaint. Suffice to say that account is in the name of the petitioner. There is no dispute that signatures on the cheques are of the petitioner, the account is of the petitioner and that on relevant date she could operate the account. The argument that petitioner had not borrowed any amount from the complainants is a defence available to the petitioner for which an opportunity would be there before the trial Court. Section 139 of the Act raises presumption in favour of the holder of the cheque that cheque was issued for discharge of debt or liability, albeit presumption i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng decided by single order. The facts are being taken from CRM-M-29886-2017. RELEVANT FACTS: [2] The relevant facts necessary for adjudication are that marriage of petitioner was solemnized with Arun Mittal son of Babu Ram Mittal on 2nd February, 2012. Shortly after marriage, petitioner alongwith her husband went to USA and started residing there. They were blessed with a son on 23rd February, 2016. During her short stay in India after marriage, petitioner opened a bank account No. 32185162677 in the State Bank of India on 10th February, 2012. From June, 2015 onwards, their matrimonial relation faced rough weather. After coming back to India, petitioner and her husband indulged into matrimonial litigation. Husband filed a divorce petition whereas petitioner filed petition for maintenance, complaint of domestic violence and demand of dowry. [3] As per the complaint, the petitioner borrowed an amount of ₹ 9,50,000/- in January, 2017 from Dharampal-complainant (respondent No.1) on assurance given by her brother-Munish and one Jeevan about her returning money. She issued a cheque No. 000030, dated 18th April, 2017 amounting to ₹ 9,50,000/- drawn on State Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act passed an order in which it has directed the respondent No. 1 inter alia to produce documentary proof of his source of income together with land, jama bandis etc. We are of the view that this kind of interim order in a Section 482 petition cannot be passed. Either the quash petition be allowed or dismissed. The rest is a matter for evidence to be taken up before the learned Magistrate. On this short ground, we set aside this order. We make it clear however that nothing in our order will be taken to be a reflection on the merits of the matter. The High Court may take up at the earliest the quash petition itself and dispose of the same on its own merits. Mr. Ashok Arora, learned counsel appearing on behalf of the respondent wishes to produce certain additional documents in the High Court. This he may do subject to the High Court s permission. The appeal is disposed of accordingly. CONTENTIONS ON BEHALF OF THE PETITIONER: [6] Mr. P.K. Hooda, learned counsel for the petitioner argues that complaints have been filed at the behest of Babu Ram Mittal, fatherin- law of the petitioner (respondent No.2), as pressure tactics to the matrimonial dispute. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are quoted below:- SECTION 118 - PRESUMPTIONS AS TO NEGOTIABLE INSTRUMENTS. Until the contrary is proved, the following presumptions shall be made:- (a) of consideration:-- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date:-- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer:-- that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements:-- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp:-- that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course:-- that the holder of a negotiable instrument is a holder in due course : provided that, where the instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or other liability. XX XX XX LEGAL POSITION: [12] Following decisions of the Supreme Court would be relevant:- State of Haryana and others Versus Bhajan Lal and others, 1992 (Supp) 1 SCC 335. 108. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. Jugesh Sehgal Versus Shamsher Singh Gogi, (2009) 14 SCC 683. 9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) The cheque should have been issued for the discharge, in whole or in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ample opportunity to probabilis his defence. On that count, in the facts of this case, complaint cannot be quashed. HMT Watches Ltd. Versus M.A. Abida, (2015) 2 RCR (Criminal) 366. 10. Having heard learned counsel for the parties, we are of the view that the accused (respondent no.1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of N.I. Act stood uncomplied, even though the respondent no.1 (accused) had admitted that he replied the notice issued by the complainant. Also, the fact, as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated. CONCLUSION [13] During the pendency of these petitions, respondent No. 2 was impleaded as a party. The matter was referred to the Mediator attempting an amicable settlement between the parties but no fruit was yielded. At the time of arguments, learned counsel for the parties on specific query from the Court, submitted that there is no chance of settlement. [14] The contention of petitioner is that two ingredients for invoking Section 138 of the Act are missing. Firstly that the account was not maintained by her and secondly that cheques were not issued for discharging any debt or liability , rather it is a case of misuse of blank cheques signed by her. [15] The presumption raised under Section 118 of the Act is that negotiable instrument drawn is for consideration . As per Section 139 of the Act, unless contrary is proved, it shall be presumed that the cheque received was in the nature of discharge of debt or liability. [16] It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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