2018 (8) TMI 1022 - HC - Indian Laws

Issuance of Cheque in the name of the mother - Section 138 of the Negotiable Instruments Act, 1881 - rebutting of presumption - validity of criminal complaint - Held that - Ordinarily, the opportunity to rebut the presumption raised by Section 139 of the N.I. Act would be exercised and availed of by the accused at the trial by attempting to discredit the evidence of the complainant or by leading some positive evidence in rebuttal. In the present case, however, even going by the averments in the criminal complaint, it is clear from the word go that there was no liability due to the complainant from the petitioner, i.e., the person who has been summoned as an accused. The complainant had no arrangement with the petitioner. She had not rendered any service to him. It is her sons who were engaged by him and the payment was due on account of professional services rendered by them to the petitioner. The issuance of the cheque in the name of the mother itself is questionable. Be that as it may, since the case presented by the complainant itself shows there being no debt or other liability, the prosecution on the criminal complaint aforesaid against the petitioner is impermissible - Petition allowed.

Summary

Issues:
- Quashing of criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 based on a complaint alleging dishonor of a cheque.
- Interpretation of Section 139 of the Negotiable Instruments Act, 1881 regarding the presumption of discharge of debt or liability upon issuance of a cheque.

Analysis:
The petitioner, summoned as an accused in a criminal complaint under Section 138 of the Negotiable Instruments Act, sought quashing of the proceedings, claiming the summoning order was an abuse of the process of law. The complaint alleged dishonor of a cheque issued against professional fees owed to the sons of the complainant, who were engaged as advocates by the petitioner for legal representation. The petitioner disputed the existence of any debt or liability towards the complainant directly, as the services were rendered by her sons. The court noted that for an offense under Section 138, it is essential to prove that the cheque was issued for the discharge of a debt or liability. The court emphasized the need to rebut the presumption under Section 139 of the Act, which can be done by discrediting the complainant's evidence or providing contrary evidence. However, in this case, the court found that no liability existed between the petitioner and the complainant directly, rendering the prosecution impermissible. The judgment distinguished a previous case and highlighted the absence of factual defenses in the present matter.

The court observed that the issuance of the cheque in the name of the complainant raised doubts, especially considering the lack of a direct financial obligation between the parties. Consequently, the court allowed the petition, quashing the criminal proceedings against the petitioner. The judgment emphasized that the complainant failed to establish any debt or liability owed by the petitioner, leading to the dismissal of the case. The decision highlighted the importance of proving the existence of a debt or liability when invoking Section 138 of the Negotiable Instruments Act, 1881. The court's analysis underscored the necessity of establishing a direct connection between the issuance of the cheque and the discharge of a financial obligation to sustain a case under the Act.