JUDGMENT R.D. Kothari, J. Common oral judgment in Misc. Criminal Application No. 14179 of 2009 and Misc. Criminal Application No. 14180 of 2009: 1. The petitioner herein prays to quash the complaint i.e. Case Nos. 1279 of 2009 and 3715 of 2008 pending before Metropolitan Magistrate, Ahmedabad. Complaints are for the offence under Sec. 138 of the Negotiable Instruments Act. The facts are unusual, sad and startling. One Shashikumar Purushottam Mohta is the complainant. It is say of the complainant that present petitioner, who is mother of the complainant, has issued cheque of Rs. 2 crores in favour of the present complainant. Giving intimation by the bank to the complainant that account holder i.e. present petitioner has given instruction of - "stop payment". Complainant had issued notice to the petitioner and has filed a criminal case against his own mother. 2. Heard the learned Advocate for the parties. 3. Learned Senior Advocate Mr. Sanjanwala has submitted that case of the complainant on the face of it is unacceptable. In his opinion, say of the complainant is absurd. Main submission are two-folds; firstly, that cheque is not issued by the petitioner in discharging of any liability or debt, hence, no presumption could be raised under Sec.139 of the Act and secondly, on merits also, if one reads closely material on record, it would appear that say of the complainant is nothing but false. In the circumstances of the present case, it was submitted that this Court should quash the proceeding in exercise of inherent power. 4. On the other hand, learned Advocate for the complainant vehemently opposed the present petition. In support of the submissions, learned Advocate for the complainant has drawn attention to complaint filed before the Court of learned Metropolitan Magistrate, Ahmedabad. It is fairly lengthy complaint. Attention was drawn to Para 10 and other Paras. Learned Advocate has also drawn attention to affidavit-in-reply filed by the respondent No. 2. Attention was drawn to Paras 6, 8, 12 and other parts of the affidavit. Attention was also drawn to written submissions submitted earlier by the respondent (Page 106). In this written submissions, attention was drawn to Paras 19 and 20, wherein respondent No. 2 has referred and relied on Sec. 138 of the Negotiable Instruments Act. Attention was drawn to Paras 6, 8, 12 and other parts of the affidavit. Attention was also drawn to written submissions submitted earlier by the respondent (Page 106). In this written submissions, attention was drawn to Paras 19 and 20, wherein respondent No. 2 has referred and relied on Sec. 138 of the Negotiable Instruments Act. Learned Advocate for the respondent has submitted that question sought to be raised by the petitioner cannot be considered by this Court in exercise of power under Sec. 482 of Cr.P.C. The case against the present petitioner can be considered at the time of trial. Learned Advocate has also drawn attention to Shree Meenakshisunderam Textile Ltd. v. State of Gujarat, reported in, 2012 (0) GLHEL-HC 226625, Rangappa v. Sri Mohan, reported in, 2010 (0) GLHEL-SC 48349 and M/s. M.M.T.C. Limited v. M/s. Medchl Chemicals and Pharma (P) Ltd., reported in, AIR 2002 SC 182 . 5. Relevant materials on record are thus: "5-8-2008 - Date of cheque 7-10-2008 - Date of presenting cheque before the bank 9-8-2008 - Letter by the petitioner to the complainant calling upon later to hand over all the papers of business and financial affairs. She also says to return the blank cheques and blank papers. 26-8-2008 - R.P.A.D. notice by the complainant to the petitioner and other brother of the complainant wherein the complainant asked for dissolution for II.U.F. properties. 30-8-2008 - Notice by the complainant to the petitioner and other brother calling upon petitioner to make payment for rendering personal and professional service by him including protecting the properties. The complainant demands Rs. 14 crores. 22-9-2008 - Reply of complainant's notice by the petitioner dated 30-8-2008 25-9-2008 - Letter by the petitioner addressed to Manager, Punjab National Bank intimating not to make payment (stop payment) and not to honour any cheque of the above referred account number. 3-10-2008 - Letter by the petitioner to P.I. Navrangpura Police Station drawing attention of said authority about possible misuse of blank signed cheques." 6. The facts speak for itself. Date of issuance of cheque is 5-8-2008. It is not in dispute that said cheque was presented before the concerned bank only on 7-10-2008. In between notice/letter exchanges take place between the parties. There is R.P.A.D. notice given by the complainant to the petitioner wherein he has demanded dissolution of H.U.F. This notice is dated 26-8-2008. Date of issuance of cheque is 5-8-2008. It is not in dispute that said cheque was presented before the concerned bank only on 7-10-2008. In between notice/letter exchanges take place between the parties. There is R.P.A.D. notice given by the complainant to the petitioner wherein he has demanded dissolution of H.U.F. This notice is dated 26-8-2008. Therein, the complainant does not refer or even mention about issuance of cheque by the petitioner on 5-8-2008. It is incredible. It is logical and natural to mention in the notice about issuance of the cheques by the petitioner. Then, after three days i.e. on 30-8-2008, the respondent No. 2 gives another notice to the present petitioner and others. In the second notice, now complainant calls upon the mother and others to make payment for rendering personal and professional services by him and he also demands fees for protecting the properties worth of Rs. 100 crores. In the said notice also, the complainant/respondent No. 2 does not make any reference about the issuance of cheque dated 5-8-2008. Bare reading of notice gives impression that person like respondent No. 2 who is so conscious about his share and "rights" would not miss to mention and refer cheque said to have issued by the petitioner to the complainant. Conduct of respondent No. 2/complainant provides room to the petitioner to urge that signed and unsigned blank cheque and blank papers had remained with respondent No. 2 and respondent No. 2 had misused the same. In addition, it may also be noted that reference to the cheque in his notice by the complainant would have supported and strengthened his claim. Circumstance of the case points towards the misuse of cheque by the complainant. The petitioner has written a letter to P.I. of concerned Police Station about the possible misuse of cheque. Thereafter, respondent No. 2 has submitted cheque for clearance before the bank as observed above only on 7-10-2008. 7. In short, material on record i.e. R.P.A.D. notice given by the complainant/respondent No. 2, letters of the petitioner, - if read and considered together, - it would appear that case of complainant is difficult to accept. 8. Thereafter, respondent No. 2 has submitted cheque for clearance before the bank as observed above only on 7-10-2008. 7. In short, material on record i.e. R.P.A.D. notice given by the complainant/respondent No. 2, letters of the petitioner, - if read and considered together, - it would appear that case of complainant is difficult to accept. 8. Now, the case may be considered that whether complainant/respondent No. 2 can be said to be holder of a cheque that is received by him in discharge of any debt or other liability as envisaged under Sec. 139 of the Negotiable Instruments Act. In this regard learned Advocate for the complainant has drawn attention to the judgment of this Court in Shree Meenakshisunderam Textile Ltd. v. State of Gujarat (supra). Attention was drawn to this observation: "...........Whether at the time of depositing of the cheque there was legally enforceable debt or not is a question which is required to be considered at the time of trial on appreciation of evidence. As stated above, as such there is presumption as provided under Sec. 139 read with Sec. 118 of the Negotiable Instruments Act, that the cheque has been issued for legally enforceable debt, however, the same is rebuttable. Therefore, the submission on behalf of the petitioners to quash and set aside the impugned complaint on the aforesaid ground, in exercise of powers under Sec. 482 of the Code of Criminal Procedure cannot be accepted." 9. Learned Advocate for the complainant has also drawn attention to M/s. M.M.T.C. Limited v. M/s. Medchl Chemicals and Pharma (P) Ltd. (supra). Attention was drawn to Para 13, it was held: "The learned Judge has next gone into facts and arrived at a conclusion that the cheques were issued as security and not for any debt or liability existing on the date they were issued. In so doing the learned Judge has ignored well settled law that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability. (Emphasis original) It is next held as follows: "This is a special provision incorporated in the Negotiable Instrument Act. It is necessary to allege specifically in the complaint that there was a subsisting liability and an enforceable debt and to discharge the same, the cheques were issued. But, we do not find any such allegation at all. The absence of such vital allegation, considerably impairs the maintainability." (Emphasis original) 10. On the other hand, learned Advocate Mr. Sanjanwala has drawn attention to Bharatbhai K. Patel v. C.L. Verma (Since Decd.) through P.O.A. Surjit Singh Macker, reported in, 2002 (2) GLR 1713 . Attention was drawn to Para 9. Learned Advocate has also placed reliance on Kumar Exports v. Sharma Carpets, reported in, 2009 (2) SCC 513 . Attention was drawn to Para 20. 11. While considering presumption under Sec. 139 of the Negotiable Instruments Act, in Bharatbhai K. Patel case (supra), this Court had held: "9. An attempt to rebut legal presumption at initial stage of proceedings is not and cannot be barred but if such an attempt, if made, must be very well founded and above the convincing standard of preponderance of probabilities. The reply to statutory notice is a stage from where it can be shown that the allegations made are absurd, improbable, mala fide and no prudent person can ever reach a just conclusion that there is sufficient ground to proceed against the accused. In the present case, the petitioner has satisfactorily established the basic infirmity in the complaint and its maintainability. It is obligatory on the part of the accused to rebut the legal presumption but perusal of statement of Mr. C.L. Verma and me stand taken by the associates of Bharat Vijay Mills/Continental Textile Mills in civil litigation including Mr. C.L. Verma referred hereinabove, provides sufficient rebuttal at this stage. It is obligatory on the part of the accused to rebut the legal presumption but perusal of statement of Mr. C.L. Verma and me stand taken by the associates of Bharat Vijay Mills/Continental Textile Mills in civil litigation including Mr. C.L. Verma referred hereinabove, provides sufficient rebuttal at this stage. Normally, this Court is supposed to read the averments made in the complaint and at the initial stage of the proceedings, the High Court is not justified in entertaining and accepting the plea that mere was no debt or liability. Defence plea cannot be entertained in quashing proceedings. But in the cases where the petitioner is able to show to the Court that there was no existing debt or liability at the time of presentation of the cheque for encashment on the basis of the conduct of the complainant or admissions made by the complainant that may be in other legal proceedings, then in such cases, the proceedings can be terminated and the accused should not be asked to face the trial till it concluded. So, this Court inclined to allow this petition as the petitioner has successfully rebutted the presumption at initial stage and has pointed out the basic infirmity as to maintainability of the proceedings." (Emphasis supplied) 12. In Kumar Exports v. Sharma Carpets (supra), the Hon'ble Supreme Court has held thus: "The accused in a trial under Sec. 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. However, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To 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 Sec. 114 of the Evidence Act to rebut the presumptions arising under Secs. 118 and 139 of the Act." 13. Learned Advocate for the complainant has tried to distinguish the case of M/s. Kumar Export (supra) urging that it was not at the initial stage of the proceedings and the proceeding had reached before the Hon'ble Supreme Court at the end of trial. Clear holding of the Hon'ble Supreme Court as to how to rebut the presumption under Sec. 139of the Negotiable Instruments Act cannot be distinguished on the ground that proceeding reached before the Court via Appeal. 14. M/s. M.M.T.C. Ltd. case (supra) upon which the strong reliance placed by the learned Advocate for the complainant/respondent No. 2 cannot help the respondent in the facts of the present case. In that case, it would appear that cheques were issued pursuant to commercial transactions. Memorandum of Understanding (M.O.U.) was entered into between the appellant and respondent. In pursuant to that, two cheques were issued. After issuance of cheques, appellant had intimated the bank for - "stop payment". Accordingly, cheques were returned and criminal complaint was filed. In that case, it would appear that cheques were issued pursuant to commercial transactions. Memorandum of Understanding (M.O.U.) was entered into between the appellant and respondent. In pursuant to that, two cheques were issued. After issuance of cheques, appellant had intimated the bank for - "stop payment". Accordingly, cheques were returned and criminal complaint was filed. It appears that therein plea was raised that complaint is not filed by the authorised person. Additional plea was raised that there was no existence of debt or liability. The Hon'ble Supreme Court has held thus: "Just such a contention has been negatived by this Court has, in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi, reported in, 1998 (3) SCC 249 . It has been held that even though the cheque is dishonoured by reason of 'stop payment' instruction an offence under Sec. 138 could still be made out. It is held that the presumption under Sec. 139 is attracted in such a case also. The authority shows that even when the cheque is dishonoured by reason of stop payment instructions by virtue of Sec. 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course, this is a rebuttable presumption. The accused can thus show that the 'stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an offence under Sec. 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus, a Court cannot quash a complaint on this ground." (Para 18) (Emphasis original) 15. Learned Advocate for the complainant has submitted that like present case therein also, party had issued instructions for stop payment and plea of absence of existing liability or debt was also raised. Thus, a Court cannot quash a complaint on this ground." (Para 18) (Emphasis original) 15. Learned Advocate for the complainant has submitted that like present case therein also, party had issued instructions for stop payment and plea of absence of existing liability or debt was also raised. Therein, it was clearly held by the Hon'ble Supreme Court that burden to prove absence of liability or debt is on the accused and the Court can not quash the complaint on the same. 16. As observed above, facts of the case do not support say of the complainant. Had it been a case that cheque is issued by the party in pursuant to commercial or business transactions then the matter would have been different. In the present case relationship between the parties is of a mother and son. The material on record gives impression that mother may not be semi-literate old lady. Though she is old lady, she knows English. In the affidavit filed by the complainant, he asserts that his mother has a coaching from French Teacher in her young age. She places signature in English. Her letters give impression that she runs business. She says that at the relevant time, the complainant was looking after her business and financial affairs. These aspect are relevant and possible to read in favour of the complainant. But that does not carry the case of the complainant much further. From this material, it is not possible to infer that mother would issue the cheque first of Rs. 2 crores and then another of Rs. 3 crores in favour of her son. Circumstances of the case suggest that signed blank cheque may have been in possession of the complainant. Further say of the complainant in his notice, preceding the presentation of cheque in the bank is odd and inconsistent. Complainant is not specific or clear that for what the petitioner has issued cheque. In former notice, he claims dissolution of H.U.F. properties and in later notice issued after four days, he demands payment for rendering professional and personal services. Then, roughly mixture of above two grounds, one find in complaint under Sec. 138 of the Act. Complainant is not specific or clear that for what the petitioner has issued cheque. In former notice, he claims dissolution of H.U.F. properties and in later notice issued after four days, he demands payment for rendering professional and personal services. Then, roughly mixture of above two grounds, one find in complaint under Sec. 138 of the Act. In the complaint, he says : "........The complainant could never imagine for such actions of returning of the cheque by making stop-payment of the cheque, as the cheque was signed by the mother from her bank account, issued against discharge of her liability towards legal dues of the complainant, paid as part-payment. In fact, such actions of the opposite party, at her end was uncalled for. Mother herself had appreciated at the time and again for the labour, money and time put by the complainant to protect and safeguard the properties. But her stop-payment instructions is apprehended under the guise of others and thereby has compelled the complainant to instruct the Advocate to issue notice under Sec. 138 of the amended Negotiable Instrument Act to the opposite party to pay............" In the next paragraph, Shashikumar, complainant says; "..........The height of force applied on mother by these two brothers and sisters is put in mother's own words, for the first time on 23-11-2008, in the form of her remarks : 1. "That I have given birth to you and incurred all expenses in your upbringing. How do you compensate me?............" The complainant in the end prays for issuance of process against the applicant and also adds that applicant be asked to remain present during the trial and co-operate the Hon'ble Court. He cites bank officials as his witness. Principal villain in the way of the complainant is relationship between the parties. For this reason, M/s. M.M.T.C. Limited case (supra) do not help the complainant. 17. In Shree Meenakshisunderam Textile Ltd. v. State of Gujarat (supra), upon which the complainant has placed reliance, cheques were issued pursuant to business and commercial transactions, that has taken place between the parties. Accused used to purchase raw cotton from the complainant since long time and the complainant was maintaining the account of sell of goods to the accused. Receipts of payment were also issued. This case does not help the complainant. 18. Accused used to purchase raw cotton from the complainant since long time and the complainant was maintaining the account of sell of goods to the accused. Receipts of payment were also issued. This case does not help the complainant. 18. It is not possible to agree with the submission that presumption under Sec. 139 of the Negotiable Instruments Act, does arise in the case on hand or not, cannot be considered by the Court while exercising of powers under Sec. 482 of Cr.P.C. No absolute rule can be laid down. It depends upon the facts and circumstances of the case. The present case is a illustration of need for interference by this Court and quash the proceedings in exercise the powers under Sec. 482 of Cr.P.C. As observed above, it is not possible to say that cheques in the present case is issued in discharge of any liability or debt. 19. Once it is conceded that facts and circumstance of the case dominates and play decisive role, then it would not be difficult to accept the myth of might of presumption under Sec. 139 of the Act. At least in two ways, presumption becomes vulnerable to an attack by other side. One, fact may makes way for the accused and special facts or peculiar fact of the case may hold back the operation of presumption or in peculiar facts of the case, the Court may look into the material brought on record by the accused in support of his say that cheque is not issued in discharge of any debt or liability. In order to prevent injustice, the Court may look into such material. In short, submission about rigours and all pervasive effect of presumption read with limitation of Court under Sec. 482 of Cr.P.C. is not possible to accept in the circumstances of the case. In view of above, petitions succeeds. The criminal complaints pending before Metropolitan Magistrate, Ahmedabad being Complaint Nos. 1279 of 2009 and 3715 of 2008 are hereby quashed and set aside. Rule is made absolute. Common Oral order in Misc. Criminal Application No. 20209 of 2013 and Misc. Criminal Application No. 20210 of 2013: "1. Rule. Learned A.P.P. waives service of Rule on behalf of State -respondent No. 1 2. In view of common judgment passed in Misc. Criminal Application No. 14179 of 2009 and Misc. Rule is made absolute. Common Oral order in Misc. Criminal Application No. 20209 of 2013 and Misc. Criminal Application No. 20210 of 2013: "1. Rule. Learned A.P.P. waives service of Rule on behalf of State -respondent No. 1 2. In view of common judgment passed in Misc. Criminal Application No. 14179 of 2009 and Misc. Criminal Application No. 14180 of 2009, present applications do not survive and same are disposed of accordingly. Rule discharged."