TMI Blog2023 (10) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... o not to prematurely extinguish the case by disregarding the legal presumption which supports the complaint. This Court is of the opinion that the issues raised before this Court can only be decided by the learned Trial Court at appropriate stage, on their own merits. Since a prima facie case exists against the petitioner under Section 138 of NI Act, there are no reasons to quash the summoning order dated 25.09.2019. Petition dismissed. - HON'BLE MS. JUSTICE SWARANA KANTA SHARMA For the Petitioner Through: Mr. Deepak Kohli and Ms. Gurmeet Kaur Kapur, Advocates For the Respondent Through: Mr. Mayank Bughani, Advocate JUDGMENT SWARANA KANTA SHARMA, J. 1. The instant petition is filed on behalf of petitioner under Section 482 of the Code of Criminal Procedure, 1973 ( Cr.P.C. ) assailing summoning order dated 25.09.2019 passed by learned Metropolitan Magistrate, Patiala House Courts, Delhi in Complaint Case bearing no. 13531/2019 titled as Paramount Communications Ltd. vs GSM Engineering Company , filed under Section 138 of Negotiable Instruments Act, 1881 ( NI Act ). 2. Brief facts of the case, as per complaint under Section 138 of NI Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be valid complaint. It is argued that complainant had misused the security cheque given by the petitioner some years back by filling the particulars in it at a later stage. Thus, it is stated that present petition be allowed. 4. Learned counsel for respondent, on the other hand, vehemently opposes the present petition and states that the sole ground for petitioner to have obtained ex-parte interim stay of trial court proceedings on 14.02.2020 was that as per the ledger filed with the complaint under Section 138 of NI Act, the amount alleged to be due was less than the amount mentioned on the dishonored cheque, however, the petitioner had deliberately filed incomplete ledger before this Court and suppressed the complete ledger, and a perusal of the complete ledger demonstrates that the total amount due as per the ledger filed before the learned Trial Court is Rs. 48.98 lakhs. It is argued that the contentions raised before this Court regarding ledger filed by the complainant alongwith the complaint before learned Trial Court being false and fabricated, or that the cheque in question being issued as a security cheque, are all issues which can only be adjudicated upon durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of its validity; (ii) The holder of the cheque must make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within thirty days from the receipt of the notice from the bank that the cheque was returned dishonoured; and (iii) The holder of the cheque fails to make the payment of the said amount of money within fifteen days from the receipt of the notice... 8. The controversy in the present case revolves around the issue as to what was the actual amount due and payable on the part of petitioner/accused towards the complainant/respondent, and as to whether the amount due as on date of presentation of cheque for encashment and its subsequent dishonoring was less than the amount of cheque in question. Thus, all the arguments revolve around the prima facie fulfillment of essential (ii) of a case under Section 138 of NI Act i.e. the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability . 9. The case set out by the petitioner is that the maximum amount due even as per the ledger maintained by the complainant, as on date of presentation of cheque, was Rs. 19,43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated only during the course of trial. 12. In this background, this Court deems it apposite to refer to the decision of Hon ble Apex Court in Rathish Babu Unnikrishnan v. State (NCT of Delhi) 2022 SCC OnLine SC 513, wherein while examining as to whether or not the contention that a cheque was issued as security and not in discharge of legally recoverable debt is sufficient to quash proceedings at pre-trial stage, it was held that it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the Trial Court to evaluate the evidence of the parties. The relevant observations of Hon ble Apex Court are reproduced as under: 6. As noted earlier, the appellant's basic contention is that the cheque in question was not issued in discharge of legally recoverable debt . They also raised a contention on the obligation of the complainant to transfer the concerned shares. A defence plea is raised by the appellant to the effect that the cheques in question were issued as security and not in discharge of any legally recoverable debt . 7. The learned Judge of the Delhi High Court while considering the petition und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich supports the complaint. The opinion of Justice K.G. Balakrishnan for a three judges Bench in Rangappa v. Sri Mohan would at this stage, deserve our attention: 26. we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 12. At any rate, whenever facts are disputed the truth should be allowed to emerge by weighing the evidence. On this aspect, we may benefit by referring to the ratio in Rajeshbhai Muljibhai Patel v. State of Gujarat where the following pertinent opinion was given by Justice R. Banumathi: 22. ..When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act ought not to have been quashed by the High Court by taki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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