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TMI Blog2020 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... cts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents. It is worthwhile to mention here that respondent No. 2 is not the party to the complaint, pending before the learned trial court. Petitioner has further stated in the petition that the cheques were given without any date but the amounts were mentioned in the same. He further avers that as a matter of goodwill he had paid a sum of ₹ 2.5 lacs to the respondents but the respondents in order to loot the petitioner, presented the cheques bearing Nos. 041798 for an amount of ₹ 2.5 lacs and 041800 and 041799 for an amount of ₹ 2 lacs each for encashment after filling the dates in the said cheques. The petitioner further states that he has never owed any money to the respondents and also in terms of clause (b) and ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he even produced the photocopy of the postal receipt dated 05.10.2017 through virtual mode also and he has further argued that the statement of the complainant-respondent No. 1 was recorded on oath. He lastly argued that the petitioner can raise all these pleas before trial court but not in a petition under section 561-A Cr.P.C. 6. Heard and perused the record and even the information was also sought from the concerned court through virtual mode. 7. In order to appreciate the contention of the petitioner, it is appropriate to have a cursory glance with regard to the existence of liability as pleaded by the complainant in para-1 of the complaint. The para-1 of the complaint is reproduced as under: 1. That the complainant and accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our view, erred in quashing the criminal case in CC No. 367 of 2016 filed by Appellant 3 Hasmukhbhai under Section 138 of the NI Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the NI Act in favour of the holder of cheque that is the complainant Appellant 3. The nature of presumptions under Section 139 of the NI Act and Section 118(a) of the Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no legally enforceable debt and he issued the cheques to help Appellant 3 Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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