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2021 (11) TMI 650 - HC - Indian LawsDishonor of Cheque - cheques are signed by the petitioner or not - rebuttal of presumption - respondent submits that matrimonial litigation of the petitioner is being used as a shield for non-payment of the amount due - 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 - scope of complaints under Section 482 Cr.P.C. HELD THAT - 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 - It is settled law that complaint under Section 482 Cr.P.C. is to be quashed 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 is rebuttable. The veracity of defence would be subject matter of the trial. It is not for this Court in the quashing petition to elucidate on the factual defence raised by the petitioner. The stand taken that FIR was got registered alleging misuse of cheque is noted to be rejected at this stage. The FIR was subsequent to issuance of legal notices and the matter is sub-judice in the Court - case does not fall within parameters for quashing of complaints under Section 482 Cr.P.C., the petitions are dismissed.
Issues Involved:
1. Quashing of complaints under Section 138 of the Negotiable Instruments Act, 1881. 2. Validity of cheques issued from an account allegedly not maintained by the petitioner. 3. Allegations of misuse of blank signed cheques. 4. Presumptions under Sections 118 and 139 of the Negotiable Instruments Act. 5. Disputed facts and their impact on the quashing of complaints under Section 482 Cr.P.C. Issue-wise Detailed Analysis: 1. Quashing of Complaints under Section 138 of the Negotiable Instruments Act, 1881 The petitions were filed under Section 482 of the Cr.P.C. for quashing complaints under Section 138 of the Negotiable Instruments Act. The court emphasized that quashing a complaint should be done sparingly and only in the rarest of rare cases. The court noted that the power of quashing is not to be exercised mechanically or routinely. 2. Validity of Cheques Issued from an Account Allegedly Not Maintained by the Petitioner The petitioner argued that the account from which the cheques were issued was not maintained by her. The court found that the account was in the petitioner’s name, and there was no dispute that the signatures on the cheques were hers. The court noted that these facts were sufficient to establish that the account was maintained by the petitioner, thus fulfilling one of the essential ingredients of Section 138. 3. Allegations of Misuse of Blank Signed Cheques The petitioner contended that blank signed cheques were misused by her father-in-law, who allegedly operated the account in her absence. The court held that these are disputed facts that require evidence and cannot be the basis for quashing the complaints. The court emphasized that such issues should be addressed during the trial. 4. Presumptions under Sections 118 and 139 of the Negotiable Instruments Act Sections 118 and 139 of the Act raise presumptions in favor of the holder of the cheque. The court reiterated that unless the contrary is proved, it is presumed that the cheque was issued for the discharge of debt or liability. The veracity of the petitioner’s defense that no amount was borrowed from the complainants is a matter for trial and cannot be resolved in a quashing petition. 5. Disputed Facts and Their Impact on the Quashing of Complaints under Section 482 Cr.P.C. The court noted that the contentions regarding the use of complaints as pressure tactics in a matrimonial dispute, the involvement of the petitioner’s father-in-law, and the misuse of cheques are all disputed facts. These issues require evidence and cannot form the basis for quashing the complaints. The court emphasized that such factual defenses should be addressed during the trial. Conclusion The court concluded that the case does not fall within the parameters for quashing complaints under Section 482 Cr.P.C. The petitions were dismissed, and it was clarified that nothing stated in the judgment should be construed as an expression of opinion on the merits of the case. The court also noted that the matter was referred to mediation, but no settlement was reached. Additional Notes - The Supreme Court had earlier set aside an interim order by the High Court directing the complainant to produce documentary proof of his source of income, stating that such matters should be addressed during the trial. - The court referenced several Supreme Court decisions to support its conclusions, emphasizing the limited scope of quashing petitions and the importance of addressing disputed facts during the trial.
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