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TMI Blog2023 (3) TMI 1531X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication, being Criminal Petition No. 156 of 2018 is filed by the petitioner, Pradip Patangia for quashing of the written complaint dated 24.01.2017, against him under Section 138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter, referred to as "the NI Act"), before the learned CJM, Sonitpur, Tezpur (Assam), which has been registered as NI Case No. 6 of 2017, whereby the complainant has claimed for payment of alleged legally enforceable debt. 5. The criminal petition, being Criminal Petition No. 242 of 2018, is being filed by the petitioner Gul Kumar Kalita @ Papu Kalita for quashing of the complaint dated 24.01.2017, filed by the respondent/complainant against him under Sections 138 and 142 of the NI Act, before the learned CJM, Sonitpur, Tezpur (Assam), vide NI Case No. 07 of 2017, whereby the complainant has claimed for payment of alleged legally enforceable debt. 6. The brief facts of the case is that the respondent/ complainant in consultation with her Page No.# 4/16 husband decided to buy a plot of land to build their dwelling house. The petitioner, Pradip Patangia and his friend, Gul Kumar Kalita @ Pappu Kalita, who deal in lands, having come to know about th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. In between this period, both the petitioners requested for some more amount and accordingly, through different cheques, amounts were further paid. The respondent/complainant requested the petitioners to give in writing in regard to the different payments received by them on different dates in connection with the said agreement of the land. Both the petitioners executed an agreement dated 01.12.2015, wherein they gave the details of the money received and mentioned the cheque number(s) and Bank, through which they had received the total amount of Rs. 13,60,000/- (Rupees Thirteen Lacs Sixty Thousand) Only. The agreement was duly notarized before the Public Notary, vide Sl. No. 1324/2015 dated 03.12.2015. Thus, both the petitioners jointly received the entire amount from the respondent/complainant towards the sale agreement dated 21.05.2015. 9. Subsequently, the respondent/complainant enquired about the sale permission and about the execution of the sale deed. The petitioners kept on promising that within a couple of months' time, the permission would be received from the concerned offices. The respondent/complainant believed the words of the petitioners and waited for months. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police arrested the petitioner, Pradip Patangia, who later secured bail. Subsequently, the petitioner Gul Kumar Kalita @ Pappu Kalita, approached before the learned Sessions Judge, Sonitpur, for granting pre-arrest bail, which was rejected. Then he approached before this Court and interim bail was granted with a direction to give an undertaking to refund the cheque amount to the complainant. Subsequently, the respondent/complainant presented the said cheque to her banker, namely, Indian Overseas Bank, Tezpur Branch, under genuine belief that this time the cheque will be honoured in terms of the undertaking given before this Court. But, surprisingly, the cheque was dishonoured, due to "Cheque Stop Instruction". The said intimation memo was received by the respondent/complainant on 11.11.2016. Then the complainant sent a legal notice to the petitioners through her Advocate by registered post under Section 138 of the NI Act, bringing to his knowledge the dishonor of the cheque due to Cheque Stop Instruction. Despite information, the petitioners had not paid the amount till filing of the complaint before the learned trial Court. 11. Thereafter, the respondent/complainant finding no ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the petitioners have admitted their signatures on the impugned cheques they could not confront their liability to pay. It is further submitted that the notice of demand was given as required under Section 138 of Act and therefore, within time and therefore, no illegalilty has been committed by the learned trial Court in framing of charge. In support of his submission, the learned counsel for the respondent has cited the following caselaws:- 1) AIR 1998 SC 1400; (Tarsem Singh vs. Sukhminder Singh) 2) (2002) 6 SCC 426; (I.C.D.S. Ltd. vs. Beena Shabeer & Anr. ) 3) (2004)24 GLH 726; (Chetanbhai Vasantbhai Mistary Vs. State of Gujarat). 4) AIR 2010 SC 1898; (Rangappa vs. Sri Mohan) 5) (2012) 7 SCC 621 (Sangeetaben Mahendrabhai Patel vs. State of Gujarat & Anr.) 6) (2015) 3 SCALE 832 (HMT Watches Ltd. vs. M. A. Abida & Ors.) 17. I have considered the submissions of learned counsel for both the parties. I have also perused the scanned copy of record of NI Case No. 6 of 2017 and NI Case No. 7 of 2017. 18. Having heard the learned counsel for the parties and having perused the record, it is fruitful to have a glance on the relevant provisions of NI Act, which appear necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated." 19. On a bare look at the aforesaid provisions it reveals that under Section 138 of the NI Act, where a cheque is issued by the drawer in the discharge of any debt or any other liability is returned by the bank unpaid, because the amount standing to the credit of that account is insufficient to honour the cheque, the said person is deemed to have committed an offence, subject to proviso to Section 138 which provides that the cheque should have been presented to the bank within the period of six months from the date of which it is drawn or within the period of its validity, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature and the accused is required to lead the evidence to rebut such presumption. 24. In the case of K.N. Beena vs. Muniyappan; (2001) 8 SCC 458, it is observed that under Section 118 of the N.I. Act, unless the contrary is proved, it is to be presumed that the negotiable instruments (including a cheque) had been made or drawn for consideration. It is further observed and held that under Section 139, the Court has to presume, unless the contrary is proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. It is further observed that thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that the cheque has not been issued for a debt or liability is on the accused. 25. In the case of Rangappa vs. Sri Mohan, (2010) 11 SCC 441 Hon'ble Supreme Court held as under:- "Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a stro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of the NI Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act ought not to have been quashed by the High Court by taking recourse to Section 482 CrPC. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the NI Act on the legal issues like limitation, etc. criminal complaint filed under Section 138 of the NI Act against Yogeshbhai ought not to have been quashed merely on the ground that there are inter se disputes between Appellant -3 and Respondent-2. Without keeping in view the st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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