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2023 (11) TMI 1120 - HC - Indian LawsDishonour of Cheque - Amount of cheques are not paid even after statutory notice was served - presumption in favour of complainant - rebuttal of presumption - exercise of jurisdiction under section 482 of Cr.P.C. or Article 226 of the Constitution of India - section 138 of NI Act - HELD THAT - The Court after prima facie verifying material on record issued process for the offence punishable under section 138 of N.I.Act. The trial of the offence is at large before the learned Trial Court. It is to be noticed that in offence under section 138 of N.I.Act, provision of law provides for presumption under section 139 of N.I.Act - The complainant being holder of the cheques and in view of the fact that signature on the cheques is not denied by the accused / petitioner, legal presumption shall be drawn that cheques were issued for discharge of debt or any other liability. This presumption stands till it has been discharged. Presumption under section 139 is rebuttable presumption. It is system of reverse onus burden. In case of MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA ANR. 2006 (7) TMI 576 - SUPREME COURT the Hon ble Apex Court has considered sections 118(a), 138 and 139 of Negotiable Instrument Act and held that presumption both under section 118(a) and 139 are rebuttable in nature. Looking back to the contention raised by the petitioner, it is the case of the petitioner that there is difference in agreement to sell and complaint regarding number of flats and therefore, it cannot be said that questioned cheques were given for discharge of any liability. This argument was canvassed with a view to submit that transaction is different. Cheques in question is given for transaction for flat Nos.C/402 to C/406 as per agreement on record but the complainant has mentioned that cheques in question has been given for transaction for flat Nos.C/202 to C/ 206. Mere there is difference regarding flat numbers in agreement and complaint, it would not attract submission that cheques were not given for any legal liability. There may be typographical mistake. Burden can be discharged under section 139 of NI Act by the petitioner after leading evidence either by cross examining the complainant or by leading necessary evidence. No mala fide or vexatious claim are found. The case deserves trial. No case is made to exercise power vested under section 482 of Cr.P.C. to quash the proceedings. Needless to say that jurisdiction under section 482 of Cr.P.C. or Article 226 of the Constitution of India is requires to be exercised in circumspection and sparingly. The person calling Court to exercise such jurisdiction needs to establish from record that proceedings against him is manifestly mala fide and vexatious. In the present case, the petitioner has failed to make out such case. The petition does not deserve consideration and requires to be dismissed in limine - petition dismissed.
Issues Involved:
1. Quashing of Criminal Case No. 691/2021 under Section 138 of the Negotiable Instruments Act. 2. Presumption under Section 139 of the Negotiable Instruments Act. 3. Rebuttal of presumption and burden of proof. 4. Jurisdiction under Section 482 of Cr.P.C. and Article 226 of the Constitution of India. Summary: 1. Quashing of Criminal Case No. 691/2021 under Section 138 of the Negotiable Instruments Act: The petitioner sought to quash the criminal case filed by respondent no.2 alleging that four cheques totaling Rs.28 lakhs issued by the petitioner were dishonored. The petitioner argued that the cheques were not issued for an existing debt or liability, citing discrepancies in the flat numbers mentioned in the complaint and the agreement. 2. Presumption under Section 139 of the Negotiable Instruments Act: The court noted that under Section 139 of the N.I. Act, there is a presumption in favor of the holder of the cheque that it was received for the discharge of debt or liability. The court emphasized that this presumption is rebuttable and the burden is on the accused to prove otherwise. 3. Rebuttal of presumption and burden of proof: The court referred to several judgments, including M.S. Narayana Menon v/s. State of Kerala, Kumar Exports v/s. Sharma Carpets, and Basalingappa v/s. Mudibasappa, to explain that the presumption under Section 139 can be rebutted by the accused through a probable defense. The court highlighted that the standard of proof for rebutting the presumption is that of preponderance of probabilities. 4. Jurisdiction under Section 482 of Cr.P.C. and Article 226 of the Constitution of India: The court held that the jurisdiction under Section 482 of Cr.P.C. or Article 226 of the Constitution should be exercised sparingly and only when the proceedings are manifestly mala fide and vexatious. In this case, the court found no mala fide or vexatious claims and determined that the case deserved a trial. Conclusion: The petition was dismissed as the petitioner failed to establish that the proceedings were mala fide or vexatious. The court upheld the presumption under Section 139 of the N.I. Act and concluded that the case should proceed to trial.
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