2020 (11) TMI 76 - HC - Indian Laws

Dishonor of Cheque - allegation that the cheques with unfilled dates given to respondent No. 1 as security have been misused by him - HELD THAT - In order to falsify the complaint the petitioner has raised the various contentions such as that he did not owe any liability to the respondent No. 1, that the cheques with unfilled dates given to respondent No. 1 as security have been misused by him and also non-existence of any liability towards the respondents as per the Memo of Understanding. These all pleas are the disputed question of facts particularly when they have been denied by the respondent No. 1 and these disputed facts are to be determined during the trial and cannot be adjudicated upon by this Court while exercising powers under section 561-A Cr.P.C. This Court while exercising the powers under Scion 561-A Cr.P.C cannot conduct a mini trial with regard to the pleas raised by the petitioner. The complaint under Section 138 NI Act, no doubt can be quashed when it suffers from legal lacunae but not on the factual issues those are to be adjudicated upon only during the trial. Learned counsel for the petitioner also made half hearted attempt to persuade this Court that no notice was sent on 05.10.2017 by the complainant as he has not placed on record postal receipt with regard to the dispatch of the notice and also that the statement of the complainant has not been recorded on oath - Both these contentions of the petitioner were found false and incorrect as the learned counsel for the respondent No. 1 produced before this Court the postal receipt dated 05.10.2017 and also information has also been received from the trial court through virtual mode and it was found that the statement of the complainant was recorded on oath. Thus, there is no force in the contentions of the petitioner and the petition is found to be meritless. Petition dismissed.

Summary

Issues:
Quashing of complaint under section 138 of Negotiable Instruments Act based on Memo of Understanding and cheque presentation without dates.

Analysis:
The petitioner sought to quash a complaint under section 138 of the Negotiable Instruments Act, alleging misuse of cheques given as security based on a Memo of Understanding. The petitioner claimed not to owe any money to the respondent and argued that the cheques were presented with filled dates to implicate him. The respondent denied these claims. The court noted that disputed facts should be determined during trial, not in a petition under section 561-A Cr.P.C. Citing a Supreme Court case, the court emphasized that until the accused rebuts the presumption under Section 139 of the NI Act, the complaint should not be quashed based on disputed factual issues. The court found the petitioner's contentions meritless and dismissed the petition.

The respondent argued that the complaint was filed following the requirements of section 138 of the Negotiable Instruments Act. The respondent produced a postal receipt and contended that the complainant's statement was recorded on oath. The court verified these claims and found the petitioner's arguments regarding the absence of notice and oath recording to be false. Consequently, the court found no merit in the petitioner's contentions and dismissed the petition.

In conclusion, the court dismissed the petition as misconceived after considering the arguments presented by both parties. The court emphasized that disputed facts should be resolved during trial and not in a petition under section 561-A Cr.P.C. The court upheld the presumption under Section 139 of the NI Act until the accused rebuts it with evidence. The court found the respondent's filing of the complaint in accordance with the law and rejected the petitioner's claims regarding the absence of notice and oath recording.