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TMI Blog2022 (3) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... it was deposited in the bank account of the wife of the complainant in lieu of the debt incurred by the petitioner or not, are pure questions of fact which can be established only by leading evidence by the petitioner - It is well settled that the Courts should primarily proceed on the averments in the complaint, and the defence of the accused cannot be looked at the stage of issuing summons unless it can be shown on admitted documents which the Apex Court describe as unimpeachable in nature and sterling in quality to substantiate that there was no debt due and payable by the person who has issued the cheque or that the cheque amount is large than the debt due. It is well settled that the inherent powers should be exercised sparingly, with circumspection and in the rarest of rare cases when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of law or if the ends of justice is required that the proceedings ought not to be quashed - it cannot be accepted that the amounts deposited by the nephew of the petitioner in the bank account of the wife of the complainant was towards the debt incurred by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Instruments Act, 1881 was registered. 3. The Magistrate vide order dated 29.10.2021, after recording pre-summoning evidence, issued summons to the petitioner herein. On 18.12.2021, the petitioner appeared before Court and was granted bail subject to his furnishing a personal bond for a sum of ₹ 1,00,000/- with one surety of the like amount. The notice under Section 251 Cr.P.C was framed. The petitioner had admittedly given an outline of defence in the Court and was directed to file the physical document before the next date of hearing. On 18.12.2021, the learned counsel for the complainant submitted before the learned Trial Court that he has no objection if the complainant/respondent is cross-examined by the petitioner/accused under Section 145 (2) of the Negotiable Instruments Act, 1881. Accordingly, the complainant/respondent was directed to be present physically in the Court so that the complainant can be cross-examined by the petitioner/accused and the evidence shall be recorded as per the Delhi High Court VC Rules, 2021. 4. The petitioner, thereafter, has preferred the instant petition by stating as under: a) It was submitted by the counsel for the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T UPI TRANSFER CENTRAL BANK OF INDIA 3063349264 20,000/- 22.10.2020 MEENU SONDHI IN HER ACCOUNT UPI TRANSFER CENTRAL BANK OF INDIA 3063349264 20,000/- 19.01.2021 MEENU SONDHI IN HER ACCOUNT UPI TRANSFER CENTRAL BANK OF INDIA 3063349264 20,000/- 19.02.2021 MEENU SONDHI IN HER ACCOUNT UPI TRANSFER CENTRAL BANK OF INDIA 3063349264 20,000/- 17.02.2021 MEENU SONDHI IN HER ACCOUNT UPI TRANSFER CENTRAL BANK OF INDIA 3063349264 20,000/- 04.03.2021 MEENU SONDHI IN HER ACCOUNT UPI TRANSFER CENTRAL BANK OF INDIA 3063349264 12,000/- 07.03.2021 MEENU SONDHI IN HER ACCOUNT UPI TRANSFER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. (emphasis supplied) 10. The Supreme Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106 , has observed as under: 15. So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 of the NI Act is concerned, apparent it is that the appellant-accused could not deny his signatures on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of ₹ 3 lakhs each. The said cheques were presented to the bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The trial court had also consciously taken note of these facts and had drawn the requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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