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2019 (2) TMI 197 - HC - Indian LawsDishonor of Cheque - Section 138 of Negotiable Instruments Act, 1881 - Held that - The revisional court considered it proper to stay the proceedings in the criminal complaint case under Section 138 NI Act against the respondents on the ground that the same would unnecessarily prejudice the trial court while the criminal case arising out of FIR no. 53/2013 is pending - This Court finds the view taken by the revisional court to be wholly unfair and unjust. Though questions would arise in the criminal case under Section 138 NI Act as to whether cheque in question had come in the hands of the petitioner legitimately or not, the contentions of the respondents are a matter of defence which will have to be raised by them, the burden of proof of the requisite facts in such regard being placed on them. There is no reason why the case arising out of above-mentioned FIR should have a primacy or priority over the case of the petitioner against the opposite party. The impugned order staying the proceedings in the case under Section 138 NI Act is hereby vacated - petition allowed.
Issues:
- Criminal complaint under Section 138 of Negotiable Instruments Act, 1881 against second to fourth respondents. - Stay of proceedings in the criminal complaint case due to a related FIR against the petitioner. - Allegations of non-payment of a cheque issued by the company accused. - Dispute regarding the legitimacy of the cheque and accusations of theft and misappropriation. - Jurisdictional conflict between the criminal complaint case and the FIR case. - Petition under Section 482 Cr.P.C. challenging the stay order. Analysis: 1. The petitioner filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881, alleging non-payment by the second to fourth respondents regarding a dishonored cheque. The Metropolitan Magistrate issued summons to the respondents based on a preliminary inquiry. 2. The respondents approached the Sessions court seeking a stay on the proceedings, citing a related FIR where the petitioner was accused. The Sessions court stayed the criminal complaint case pending the final decision in the FIR case, which was registered against the petitioner at the instance of the respondents. 3. The petitioner claimed to have advanced a loan to the company accused, with a part repaid and the rest sought to be cleared through a post-dated cheque. However, the cheque was dishonored with the reason "payment stopped by drawer." The respondents alleged that the petitioner had stolen the cheque, a matter investigated in the FIR case. 4. The respondents contended that the petitioner had access to the company's cheque books and could have obtained signatures for blank cheques. On the other hand, the petitioner accused the respondents of filing a misleading FIR under the direction of the Additional Chief Metropolitan Magistrate. 5. The revisional court stayed the proceedings in the criminal complaint case under Section 138 NI Act to prevent prejudice while the FIR case was ongoing, a decision challenged by the petitioner in the High Court under Section 482 Cr.P.C. 6. The High Court found the stay order by the revisional court unjust, emphasizing that the burden of proof regarding the legitimacy of the cheque lies with the respondents. The Court ruled in favor of the petitioner, vacating the stay order but clarified that it did not express a final opinion on the case's merits.
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