9911796707
TMI Blog2024 (12) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... ate First Class, Kamrup (M), Guwahati, whereby cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 was taken in Complaint Case No. 208C/2016. The further challenge is an order dated 30.03.2017 passed by the learned trial court, whereby a petition registered as Petition No. 9456 dated 30.03.2017 preferred by the accused petitioner seeking dismissal of the complaint case on the ground of pendency of a civil suit filed by the accused was rejected. Yet another prayer made in the petition is for quashment of the entire proceeding. 3. Mr. G Baishya, learned counsel for the petitioner submits that the actual amount of legally enforceable due has not been disclosed, though the complainant had made a vague statement that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he NI Act. 8. Referring Section 139 of NI Act, Mr. Baishya, learned counsel for the petitioner argues that Section 139 of NI Act merely raises a presumption in regard of law, however, it is incumbent upon the complainant to lay the foundation that there is a legally enforceable debt which is not available in the present case and therefore, the learned Magistrate ought not to have issued the process. In this regard, Mr. Baishya, learned counsel places reliance on the decision of the Hon'ble Apex Court in the case of Krishna Janardhan Bhat -Vs-Dattatraya G. Hegde reported in 2008 4 SCC 54. 9. Per contra, Mr. Bhattacharya, learned counsel for the respondent referring to the paragraph 4 of the complaint submits that paragraph 4 clearly discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous consideration to the argument advanced by the learned counsel for the parties. Also perused the materials available on record. 13. There are three essential conditions for invoking provisions under Section 138 NI Act. The said cheque is to be presented within its period of validity, on dishonour, a demand of payment is to be made by the complainant and when the accused fails to pay the amount within a period of 15 days of receipt of such demand. It is important that the prosecution is to be launched by filing the complaint within the limit of 30 days starting from the period when cause of action arises. In the case in hand, no disputed as regard any of the aforesaid pre requisite has been raised. 14. Section 139 of the NI Act provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebut that actual liability was not disclosed and it is vague. 16. It is by now well settled that the accused can undoubtedly place reliance not only on the complaint's lacuna or material but can also adduce positive evidence and take his defence under Section 313 Cr.P.C. to rebut the presumption. The pendency of the civil case, with the allegation that the defective machines were delivered, that the complainant is not liable to pay in view of deficiency etc. can be matter of such defence of the accused. 17. This court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot make conclusive determination on the aforesaid factual aspect and defence as urged by Mr. Baishya learned counsel for the petitioner, more particularly, in abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, this court is of the view that the argument advanced by Mr. Baishya, learned counsel lacks substance and the learned Magistrate has rightly issued the process and the learned trail court was also correct in his decision not to entertain the petition No. 9456 dated 30.03.2017. 21. Accordingly, for the reason recorded hereinabove, this court finds no merit in this petition to persuade it to exercise its power under Section 482 Cr.P.C. to quash the proceeding of Complaint Case No. 208C/2016 under Section 138 of the NI Act. Accordingly, the present criminal petition stands dismissed. Interim order, if any, stands vacated. The learned Magistrate shall now proceed with the case. 22. While parting with the records, it is made clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
