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Rajasthan High Court · body

2023 DIGILAW 1033 (RAJ)

Deepak Garg v. State of Rajasthan, Through PP

2023-05-05

BIRENDRA KUMAR

body2023
JUDGMENT 1. Heard. 2. The petitioner has sought for quashment of FIR No. 290/2021 registered with Kotwali Police Station, Alwar at the behest of respondent No.2 for offence under Section 420 IPC. 3. The challenge is on the ground that the impugned FIR has been maliciously instituted to wreck vengeance. 4. Learned counsel for the petitioner submits that the background of the impugned FIR is a complaint case filed by the petitioner against respondent No.2 on 11.2.2021, wherein, cognizance was taken on 4.8.2021 against respondent No.2 for offence under Section 138 of The Negotiable Instruments Act. Respondent No.2 got bail in that case on 19.1.2022. Case of the petitioner in the aforesaid complaint case is that the complainant is engaged in the business of sale of jewellery whereas respondent No.2 is engaged in business of brick kiln. Both were known to each other. On 3.12.2020, respondent No.2 purchased gold jewellery worth Rs. 20,07,975/- vide sale cum tax invoice at Annexure-2. Respondent No.2 issued cheque No. 000546 of Rs. 20,07,975/- as payment of cost of jewellery. The date of cheque was put as 4.12.2020 on the cheque. Later on, respondent No.2 informed the petitioner to present the cheque for encashment after 10 days as the account has insufficient funds. The petitioner sent message on 9.12.2020 to respondent No.2 that he is going to present the cheque to the bank. Respondent No.2 submitted a return Whatsapp reply, a copy of the same is at Annexure-4 stating therein that respondent No.2 is suffering from financial crunch and after restitution of business after Corona effect, he would ensure payment. The petitioner presented the cheque on 16.12.2020 to the Bank and the Bank reported (vide Annexure-5) that the cheque cannot be honoured as the fund is insufficient in the account of respondent No.2. Thereafter, the petitioner informed to respondent No.2 about dishonour of the cheque and respondent No.2 assured the petitioner to wait till 4.1.2021, when respondent No.2 would make the payment of the cheque amount, failing which, the petitioner would be at liberty to initiate legal proceedings. On failure to make payment, registered legal notice was sent and on no response, complaint was filed as stated hereinabove wherein cognizance was already taken. 5. Thereafter on 17.2.2021, respondent No.2 filed a complaint case which was subsequently registered as impugned FIR No. 290/2021 on its transmission by the learned Magistrate under Section 156(3) Cr.P.C. 6. On failure to make payment, registered legal notice was sent and on no response, complaint was filed as stated hereinabove wherein cognizance was already taken. 5. Thereafter on 17.2.2021, respondent No.2 filed a complaint case which was subsequently registered as impugned FIR No. 290/2021 on its transmission by the learned Magistrate under Section 156(3) Cr.P.C. 6. The impugned FIR reveals that since the parties were known to each other very well, respondent No.2 took loan of Rs. 3,00,000/- in cash in February, 2017 from the petitioner and issued two cheques (one of the same was cheque No. 000546) in favour of the petitioner as security to ensure payment of the aforesaid loan amount of Rs. 3,00,000/-. The two cheques were only signed by respondent No.2 and cheques were blank otherwise. Respondent No.2 had handed over two blank letter pads of Diksha Bricks also whereof respondent No.2 was the proprietor. The letter heads were duly stamped. In between 6.3.2017 to 13.8.2017, respondent No.2 supplied bricks to the petitioner on request and the total cost of the bricks was 2,43,600/-. Rest amount out of Rs. 3,00,000/- i.e. 56,400/- was paid in cash to the petitioner. However, the petitioner did not return the two cheques immediately and said that he will search out those cheques in the house and thereafter would hand over the same. The petitioner with dishonest intention, fraudulently filled up one of the cheque and produced it before the Bank, the said cheque got dishonoured. For the fraudulent act aforesaid, the impugned FIR has been lodged. 7. Learned counsel for the petitioner submits that even if the complainant's statement is assumed to be correct, the complainant has admitted that he had signed the cheques but fraud was committed in filling up those cheques and presenting the same before the Bank. Learned counsel contends that in the aforesaid factual scenario, provisions under Section 139 of The Negotiable Instruments Act would be attracted which reads as follows: "139. Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability." 8. Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability." 8. According to learned counsel for the petitioner, in the aforesaid circumstance, it would be burden of respondent No.2 who is an accused in the above-refereed case lodged by the petitioner for offence under Section 138 of The Negotiable Instruments Act to prove the contrary. Instead of discharging the said burden, the present concocted FIR has been maliciously instituted to wreak vengeance. Learned counsel next contends that respondent No.2 by his own admission flouted the mandate of Section 269 ST of The Income Tax Act which stipulates that no person shall receive an amount in cash of 2 lacs or more (a) in aggregate from a person in a day. Likewise, Section 269SS of the said Act provides that no person shall take or accept from any other person in loan or deposit or any specified sum, otherwise than by an account payee cheque or account payee bank draft or use of electronic clearing system through a bank account. According to learned counsel, respondent No.2 had apparently violated the mandate of law, therefore, such violation by respondent No.2 cannot be protected under the law. 9. Learned counsel for the complainant contends that in exercise of jurisdiction under Section 482 Cr.P.C, the Court cannot enter into meticulous appreciation of evidence and rely or disbelieve any document produced before the Court which would be subject matter of the trial, as to whether the sale receipts of ornaments is a genuine paper or forged one. Likewise, whether the Whatsapp message was from the mobile phone of the complainant- respondent No.2 or not. The FIR evidently discloses dishonest and fraudulent act of the petitioner in getting the security cheques filed up and producing the same before the Bank. 10. Even if the averments made in the FIR are assumed to be correct, it is admission of respondent No.2 that he had issued the signed cheque which is subject mater of the complaint case filed by the petitioner. The cheques were for refund of loan. 11. In Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197 the Hon'ble Supreme Court stated: "33. The cheques were for refund of loan. 11. In Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197 the Hon'ble Supreme Court stated: "33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. [...] 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." Again in Anss Rajashekar Vs. Augustus Jeba Ananth, (2020) 15 SCC 348 the Hon'ble Supreme Court stated: "12. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. The expression 'unless the contrary is proved' indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a 'reverse onus clause' the three-Judge Bench of this Court in Rangappa held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 12. Evidently, the petitioner cannot be allowed to be prosecuted for bald allegations, burden to prove whereof is on respondent No.2 in view of admission of respondent No.2 that he had signed the cheque which got dishonoured. 13. Likewise, respondent No.2 has admittedly acted in violation of mandate of The Income Tax Act as referred above, therefore, respondent No.2 cannot be allowed to get protection of his unlawful act of dealing with cash above the ceiling amount prescribed under the law. If the impugned FIR and proceedings arising out of the same is allowed to be sustained, it would amount in protecting and recognizing illegal acts of respondent No.2 as referred above. 14. Therefore, the impugned FIR and subsequent proceedings stands hereby quashed to prevent miscarriage of justice and this petition is allowed.