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2020 DIGILAW 556 (JK)

Ivan Prince Parihar v. Shahnawaz Ahmad Bhat

2020-10-27

RAJNESH OSWAL

body2020
Judgment Rajnesh Oswal, J.—The present petition has been filed under section 561-A Cr.P.C. (now 482 Cr.P.C.) by the petitioner for quashing the complaint, titled, “Shahnawaz Ahmad Bhat vs Ivan Prince Parihar” filed under section 138 of the Negotiable Instruments Act pending before the court of learned Special Mobile Magistrate, Pulwama (for short the trial court). 2. The petitioner has sought quashing of the complaint on the ground that he had entered into a Memo of Understanding with the respondents on 21.05.2016, wherein the parties have defined their respective rights and obligations towards each other. The details of Memo of Understanding are not required to be reproduced herein. It is further case of the petitioner that he had given three cheques as a security to the respondents. It is worthwhile to mention here that respondent No. 2 is not the party to the complaint, pending before the learned trial court. Petitioner has further stated in the petition that the cheques were given without any date but the amounts were mentioned in the same. He further avers that as a matter of goodwill he had paid a sum of Rs. 2.5 lacs to the respondents but the respondents in order to loot the petitioner, presented the cheques bearing Nos. 041798 for an amount of Rs. 2.5 lacs and 041800 and 041799 for an amount of Rs. 2 lacs each for encashment after filling the dates in the said cheques. The petitioner further states that he has never owed any money to the respondents and also in terms of clause (b) and (e) of the Memo of Understanding signed between the parties, the petitioner does not owe any liability towards the respondents. In support of his contention, the petitioner has placed on record the photocopies of the cheques issued by him those are without dates, the memorandum of understanding and other documents. 3. The respondent No. 1 has filed the objections and has stated that the pleas raised by the petitioner can be raised before the trial court as well and have denied the pleas raised by the petitioner. 4. Learned counsel for the petitioner has vehemently argued that the petitioner does not owe any money to respondent No. 1 and cheques have been filled by respondent No. 1 just to implicate the petitioner and otherwise also as per the Memo of Understanding, the petitioner does not owe any liability towards the respondents. 4. Learned counsel for the petitioner has vehemently argued that the petitioner does not owe any money to respondent No. 1 and cheques have been filled by respondent No. 1 just to implicate the petitioner and otherwise also as per the Memo of Understanding, the petitioner does not owe any liability towards the respondents. He has further argued that that the statement of the complainant was not recorded on oath by the learned trial court before issuing process and also that the complainant has not placed on record the postal receipt regarding the issuance of notice dated 05.10.2017 that establishes the fact that no notice regarding the dishonour of the cheque was issued to the petitioner before filing the complaint. 5. Per contra, Mr. L. A. Lateef, learned counsel for the respondents has vehemently argued that respondent No. 1 has filed the complaint after following the mandate of section 138 of the Negotiable Instruments Act and during the course of hearing, he even produced the photocopy of the postal receipt dated 05.10.2017 through virtual mode also and he has further argued that the statement of the complainant-respondent No. 1 was recorded on oath. He lastly argued that the petitioner can raise all these pleas before trial court but not in a petition under section 561-A Cr.P.C. 6. Heard and perused the record and even the information was also sought from the concerned court through virtual mode. 7. In order to appreciate the contention of the petitioner, it is appropriate to have a cursory glance with regard to the existence of liability as pleaded by the complainant in para-1 of the complaint. The para-1 of the complaint is reproduced as under: “1. That the complainant and accused were having some business relation and the accused who is running a trading company under the name and style of M/S Ivan Trading Company, approached the complainant for consultant construction for allotting some construction work and the accused took an advance of Rs. 10,05,000/ for supplying of constructional work.” 8. In order to falsify the complaint the petitioner has raised the various contentions such as that he did not owe any liability to the respondent No. 1, that the cheques with unfilled dates given to respondent No. 1 as security have been misused by him and also non-existence of any liability towards the respondents as per the Memo of Understanding. In order to falsify the complaint the petitioner has raised the various contentions such as that he did not owe any liability to the respondent No. 1, that the cheques with unfilled dates given to respondent No. 1 as security have been misused by him and also non-existence of any liability towards the respondents as per the Memo of Understanding. These all pleas are the disputed question of facts particularly when they have been denied by the respondent No. 1 and these disputed facts are to be determined during the trial and cannot be adjudicated upon by this Court while exercising powers under section 561-A Cr.P.C. This Court while exercising the powers under Scion 561-A Cr.P.C cannot conduct a mini trial with regard to the pleas raised by the petitioner. The complaint under Section 138 NI Act, no doubt can be quashed when it suffers from legal lacunae but not on the factual issues those are to be adjudicated upon only during the trial. Reliance is placed upon the decision of Apex Court in case titled Rajeshbhai Muljibhai Patel v. State of Gujarat, reported in (2020) 3 SCC 794 and the relevant para is reproduced as under: “22. The High Court, in our view, erred in quashing the criminal case in CC No. 367 of 2016 filed by Appellant 3 Hasmukhbhai under Section 138 of the NI Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the NI Act in favour of the holder of cheque that is the complainant Appellant 3. The nature of 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. 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 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.” (Emphasis supplied) 9. Learned counsel for the petitioner also made half hearted attempt to persuade this Court that no notice was sent on 05.10.2017 by the complainant as he has not placed on record postal receipt with regard to the dispatch of the notice and also that the statement of the complainant has not been recorded on oath. Both these contentions of the petitioner were found false and incorrect as the learned counsel for the respondent No. 1 produced before this Court the postal receipt dated 05.10.2017 and also information has also been received from the trial court through virtual mode and it was found that the statement of the complainant was recorded on oath. Thus, there is no force in the contentions of the petitioner and the petition is found to be meritless. 10. In view of all what has been discussed above, this petition is misconceived and, as such, is dismissed.