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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 ..... im from the bank regarding the return of the cheque unpaid, despite this demand, the drawer fails to make the payment within fifteen days of the receipt of the notice, a cause of action arises for prosecuting him for the offence punishable under Section 138 of the Act. Section 142 provides that the court shall take cognizance of an offence punishable under Section 138 of the Act upon receipt of a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque. Such complaint must be made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138. However, discretion is given to the court to take cognizance of the complaint even after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period. What is emerging from the materials on record is that the signatures of the petitioner, Pradip Patangia on the cheque cheque bearing No. 305949, dated 16.08.2016, drawn on SBI, and Gul Kumar Kalita on cheque cheque bearing No. 000014 dated 16.08.2016, drawn on the HDFC Bank, Tezpur Branch are not disputed by the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 the respondent/complainant s desire for purchasing a suitable plot of land, approached the respondent/complainant and her husband with an offer of sale of a plot of land. They offered a plot of land measuring 2 kathas cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. On 17.10.2015, the petitioners in collusion with officials of Sub-Registry Office, Tezpur, deceived the respondent/complainant, inducing her to believe that the registration process for execution of the sale of agreed land wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other alternative has approached before the learned trial Court by filing a case under Section 138 of the NI Act, against both the petitioners. 12. It is submitted by the learned counsel for the petitioners that in the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 necessary for the disposal of this petition. Section 138 of the NI Act reads as under:- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount, 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, whichever is earlier. 20. The payee must also make a demand for the payment of the said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of the cheque unpaid, despite this demand, the draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 statutory presumption raised under Section 139 of the NI Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in CC No. 367 of 2016 filed under Section 138 of the NI Act. 29. In view of the aforesaid legal propositions as well as the factual matrix of the case, this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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